Marlo Offset Printing Corp.

MARLO OFFSET PRINTING CORPORATION 841 V. THE REMEDY Having found that the Respondent is engaged in unfair labor practices the Trial Examiner will recommend that they cease and desist therefrom and take certain affirmative-action designed to effectuate the policies of the Act. It has been found that the Respondent discriminated in regard to the hire and tenure of employment of Harold Irving on August 20, 1954, by discriminatorily dis- charging him. The Trial Examiner therefore recommends that the Respondent offer to Harold Irving immediate and full reinstatement to his former or substantially equivalent position, and make him whole for any loss of pay he may have suffered by reason of such discrimination by payment to him of a sum of money equal to that which he would have earned as wages or salary from the date of his discriminatory discharge on August 20, 1954, to the date of the offer of reinstatement less his net earnings during such period in accordance with the formula set out in F. W. Wool- worth-Company, 90 NLRB 289. It has also been found that the Respondent by the discharge of Harold Irving and various other acts has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by the Act. It will therefore be recommended that the Respondent cease and desist therefrom. Upon a consideration of the record as a whole, the Trial Examiner is convinced that the Respondent's conduct in committing the unfair labor practices herein found so acted in order to prevent the unionization of its employees and indicates an at- titude of opposition to the purposes of the Act generally. In order therefore,'to make effective the interdependent guarantees of Section 7 of the Act, thereby minimizing industrial strife which burdens and obstructs `commerce, and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. On the basis of the foregoing findings of fact, and upon the entire record, the Trial Examiner makes the following: CONCLUSIONS OF LAW L International Association of Machinists , AFL, is a labor organization within the meaning of Section 2-(5) of the Act. 2. By discriminating in regard to the hire or tenure of employment of Harold Irving the Respondent, B. M. C. Manufacturing" Corporation, has engaged in and is engaging in unfair labor practices within the meaningof Section 8 (a) ^(3) and (l) of the Act. 3. By interrogating, threatening, and otherwise interfering with the rights of its employees to engage in concerted activities B, M. C. Manufacturing Corporation, the Respondent, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them and each of them in Section 7 of the Act, in that it has interfered with the rights of employees to engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection in con- travention of Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The° aforesaid unfair labor practices are unfair labor practices affecting com- merep,whin the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Marto Offset Printing Corporation and Advertisers Production Services, Inc., Harris Advertisers Service, Inc., Harris Pocasset Press Corporation, and John - J. Harris and Amalgamated Lithographers of 'Americo ., CIO, ,Local No. 1. Case No. 2-CA- 3474. August 19,1955 DECISION AND ORDER On March 31, 1955, Tri ,l'Exaininer' Stephen S. Bean issued his Intermediate Report in the above-entitled proceeding, finding that 113 NLRB No. 93. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom, and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief,, and the General Counsel filed a brief in support of the Intermediate. Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings,' conclusions 3 and recommendations. ORDER Upon the entire record in this case, and pursuant to Section 10 (c), of the National Labor-Relations Act, the National Labor Relations Board hereby orders that the Respondent, Marlo Offset Printing. Corporation, New York, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Amalgamated Lithog- raphers of America, CIO, Local No. 1, as the exclusive bargaining; representative of employees in the appropriate unit as described in the Intermediate Report. (b) Discouraging membership in Amalgamated Lithographers of America, CIO, Local No. 1, or in any other labor organization of its- 'The Respondent contends that the Trial Examiner erred in admitting into evidence- the August 5, 1953, advertisement , on the ground that an inadequate foundation was laid for its admission . The Respondent 's president admitted that the advertisement was prob- ably inserted by Showers , the plant superintendent , or by someone else in the Company ; that Showers had reported poor returns from the advertisement ; and further, that sub- sequent advertisements covering the same positions were in fact placed in the same news-- paper by the Respondent after the mass discharge . In addition, this advertisement, cover: ing positions corresponding exactly to the jobs in the Respondent 's plant, appeared at a time when Respondent was resisting the Union 's efforts to negotiate a new contract. -These facts convince us that the advertisement was placed by the Respondent, and that tt was properly admitted into evidence 2 The Respondent further contends that the Trial Examiner erred in finding that it violated Section 8 ( a) (1) of the Act by its offer of steady employment to Stone, the- working foreman , we find, in agreement with the Trial Examiner, that Respondent's- offer of steady employment, in contrast to the past pattern of sporadic employment which, prevailed at this plant, was an unlawful promise of benefit in violation of Section 8 (a) (1) of the Act. For reasons fully set forth in the Intermediate Report , we find, in agree- ment with the Trial Examiner, that Stone is not a supervisor within the meaning of Sec- tion 2 (11) of the Act. 3 The Respondent contends that the Trial Examiner erred in finding that Showers was- employed by the Respondent at the time of the hearing. Because of the lack of affirmative- evidence , we do not find that Showers was employed by the Respondent at that time, and we do not rely upon the Respondent 's failure to call him in making any of our findings. Although the Trial Examiner appears to have relied in part on Respondent's failure to, call Showers in making his finding in footnote 10 of the Intermediate Report, we find it unnecessary to rely on this factor in view of the credited testimony of Soehren„and Stone- and the physical exhibits which support the findings as to the quality of the work done by the discharged ee ployees. ` MARLO OFFSET PRINTING CORPORATION 843 employees, by discriminatorily discharging and refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or ,any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- poses 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 membership in a labor organization as a condition of employment, as authorized in Section 8 ( a) (3) of the Act. 2. Take the following affirmative action which the Board finds will' effectuate the policies of the Act : (a) Upon, request bargain collectively with Amalgamated Lithog- raphers of America, CIO, Local No. 1, as the exclusive representative of all its employees in appropriate unit described in Appendix A, with respect to rates of pay, wages, hours of employment and other condi- sions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to Wallace Stone, Arthur Levitt, Irving Menchik, Joseph L. Menendez, Michael George Seman, and Victor Zeccola immediate and full reinstatement to their former or substantially equivalent po- sitions without prejudice to seniority and other rights and privileges previously enjoyed; and make them whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Upon request preserve and make available to the Board or its agents for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the rights of employment under the terms of this Order. (d) Post at its plant at 601 West 26th Street, New York, New York, copies of the notice attached hereto marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by a representative of the Re- spondent, be posted by the Respondent immediately upon the receipt thereof and be maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where 4 In the event that this Order is enforced by a decree of a TJnited States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or, covered by any other material. (e) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps Respond- ent has taken to comply herewith. CHAIRMAN FARMER took no part in the consideration of the above Decision and Order. 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, we hereby notify our employees that : WE WILL NOT discourage membership in Amalgamated Lithog= raphers of America, CIO, Local No. 1, or any other labor organi- zation by discharging, or refusing to reinstate, any of our em- ployees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT refuse to bargain collectively with Amalgamated Lithographers of America, CIO, Local No. 1, as the exclusive representative of all employees in the appropriate unit described below. 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 Amalgamated Lithographers of America, CIO, Local No. 1, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in 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 af- fected by an agreement requiring membership in a labor organiza- tion as authorized by the National Labor Relations Act. WE WILL, upon request, bargain collectively with Amalgamated Lithographers of America, CIO, Local No. 1, as the exclusive representative of_all our employees in the appropriate unit with respect to rates of pay, wages, hours of employment and other conditions of employment, and, if an understanding is reached', embody such understanding in a signed agreement. The bargain- ing unit is: All lithographic production employees employed at our 601 West 26th Street, New York, New York, plant, exclusive of MARLO OFFSET PRINTING CORPORATION 845 sketch artists, sales, professional , and clerical employees, the superintendent, and all other supervisors as defined in the- Act. WE WILL offer Wallace Stone, Arthur Levitt, Irving Menchik,. Joseph L. Menendez , Michael George Seman, and Victor Zeccola immediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them, "whole , for, any loss of, pa they, may have suffered as a'-result of the discrimination against them. All our employees are free to become or remain , or to refrain from, becoming or remaining, members of any labor organization , including Amalgamated Lithographers of America, CIO, Local No. 1, except to the extent that said right may be affected by an agreement in con- formity with ,Section 8 (a) (3) of the Act. We will not discrimi- nate, in regard to-the hire or tenure of employment or any term or condition of employment, against any employee because of member- ship'in or nonmembership in any labor organization. MARLO OFFSET PRINTING CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) 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 STATEMENT OF THE CASE Upon a charge filed against Marlo Offset Process Corporation, on November 24, 1953, by Amalgamated Lithographers of America, CIO, Local No. 1, herein called the Union, the General Counsel for the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director for the Second Region (New York, New York), issued a complaint, 11 months later on October 28, 1954, alleging violations of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, against Marlo Offset Printing Corporation, herein called the Respondent.' The complaint alleges that Respondent has engaged in and is engag- ing in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. In brief the complaint avers that: (1) In violation of Section 8 (a) (I) Respondent offered Wallace Stone, an employee, a reward if he gave up his membership in the Union and threatened him with discharge if he refused to give up such membership; (2) in violation of Section 8 (a) (3) Respondent discharged Arthur Levitt, Irving Menchik, Joseph L. Menendez, Michael George Seman, and Victor Zeccola, on or about September 30, 1953, and Wallace Stone on or about October 5, 1953, and has refused to reinstate them, because of their union activities; (3) in violation of Section 8 (a) (5) Respondent has refused and continues to refuse to bargain 2 The word "Process" contained in the charge is a misnomer for the word "Printing." Respondent admits that a copy of the charge in this proceeding was served upon it by registered mail on November 25, 1953. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collectively with the 'Union as the exclusive representative of its employees in a unit appropriate for the purposes of collective bargaining. The complaint further alleges that various business concerns named therein together with Respondent constituted a single integrated enterprise and a single employer for the purposes of the Act and that three of these business concerns, together with 'Respondent and Respondent's president and general , manager, are responsible for carrying out any order prescribed by the Board for remedying unfair labor practices of Respondent. In brief, Respondent's answer denies the commission of any unfair labor-practices and denies the integration of its business with that of the named business concerns. Affirmatively, Respondent's answer alleges that it discharged five employees for cause and the sixth resigned because it refused to require membership in the Union as a condition of employment. Pursuant to due notice, a hearing was held before me from January 3 to 12, 1955, at New York, New York. The General Counsel, Respondent, and the Union were represented by counsel and each participated in the hearing. The parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally at the conclusion of the hearing, and to file briefs. Briefs were received from the General Counsel and Respondent on February 24, 1955. During'the hearing I granted Respondent's motion to strike from the complaint paragraph 22 alleging that because of the functional and corporate integration of Respondent with other parties named in the complaint, but not in the charge, said other parties are responsible for remedying unfair labor practices of Respondent. I also ruled that all evidence of such integration should be'excluded except insofar as it might bear on the, questions of whether Respondent is engaged in commerce within the meaning of the Act and committed any of the unfair labor practices alleged. On January 4 the General Counsel, under rule 102.26 requested special permission to make direct intermediate appeal to the Board from these rulings. On January 6 the Board determined, without prejudice to further consideration if necessary, that the permission requested should be denied. Respondent's motion to dismiss, made at the conclusion of the General Counsel's case was denied. Its motion to dismiss made at the conclusion of the presentation of all testimony was taken under advisement. For the reasons set forth below, this motion is now denied. On February 23, 1955, counsel for the Respondent requested that the record be corrected in 21 places and on March 7, 1955, counsel for the General Counsel consented to 18 of the requested changes. I have examined the original certified transcript of the proceedings and hereby order that changes in the record shall be, and hereby are, made as they appear in the attached appendix marked "Appendix A." Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Mario Offset Printing Corporation is a New York corporation engaged in the business of letterpress and offset printing with its place of business at 601 West 26th Street, New York, New York. It was conceded by Respondent and testified to that during the year 1953 Respondent produced sales promotional material valued at approximately $300,000, 95 percent of which was shipped to points located outside the State of New York, by Advertisers Production Services, Inc., a New York corpora- tion engaged in selling and shipping for Respondent and others. I find that Re- spondent is engaged in commerce within the meaning of the Act. 1I. THE LABOR ORGANIZATION INVOLVED AND ITS REPRESENTATION OF RESPOND- ENT'S EMPLOYEES -Amalgamated Lithographers of America, CIO, Local No. 1, herein called the Union, is a labor organization admitting to membership employees of Respondent. - It is admitted that at all times since May 24, 1953, and up to September 30, 1953, the Union has been the representative for the purposes of collective bargaining of em- ployees of Respondent in an appropriate unit. I find that at all material times the Union has been the representative for the purposes of collective bargaining of em- ployees of Respondent in an appropriate unit. MARLO OFFSET PRINTING CORPORATION 847 HI. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion It is alleged that Respondent offered Wallace Stone, an employee, a reward if he gave up his membership in the Union and threatened him with discharge if he would not. In its answer, Respondent referred to Stone as an employee and asserted that he resigned and refused to remain in Respondent's employ because Respondent refused to require membership in the Union as a ' condition of employment . During cross- examination by counsel for Respondent of John J . Harris, president of Respondent, who had been called as a witness by the General Counsel under rule 43 (b) of the Rules of Civil Procedure, counsel for, Respondent stated Respondent would claim that Stone is a supervisory employee within the meaning of the Act . Later during the hearing, when Stone was again called to testify , Respondent moved to amend its answer by stating that Stone was employed in a supervisory capacity within the meaning of the Act . The motion to amend the answer was allowed without objec- tion. Before reaching , if at all, the question as to whether any conduct of Respondent in dealing with Stone amounted to interference with or restraint or coercion of em- ployees ( or, for the matter, discrimination against an employee ) I proceed to pass upon Stone's employment status. It would scarcely be profitable to seek out stereotypes among the literally hundreds of court and board cases-some turning one way and some the other-that have dealt with the question of when a man is, and when he is not, a supervisor. The question is essentially one of fact , the answer to which must turn on what powers a given person was authorized to exercise . Precision Fabricators, Inc. v. N. L. R. B., 204 F. 2d 567 (C. A. 2). Stone testified that: He was hired by Respondent's Production Superintendent Harry Showers in April 1953 as working foreman; he ran a press himself and was in charge of all the work coming in and the running of the presses; he transmitted Showers' orders to the men ; Showers did not discuss with him what authority he was to have with respect to hiring or firing pressmen; Showers advised him he was letting employee Charles Vessely go and despite Stone's protest Vessely was dis- charged ; he was not consulted as to whether men should be given pay increases; pressmen were assigned by him to whatever press was open or if more than one was free, pressmen worked on the press of their preference ; he would help the pressmen out in trying to match colors and approve the colors before sending layouts to Showers for his final okay; he had no authority to order a job run where the color had not been approved by higher-ups; and, at first he ordered needed supplies from outside firms but that was stopped and thereafter he sent requisitions for supplies to the office. Harris testified that: Stone would have the right to hire employees ; he would hire them from the Union; Stone did have the right to either fire or recommend the firing of employees ; and, he would recommend to Showers that a man was in- competent and (ask ) whether he should be let go and Showers would say, "all right, go ahead and do it," and Showers would ask Harris if it was 0. K. Morton Malis, - secretary of Respondent , testified at considerable length con- cerning his duties as production man and gave a rather detailed account of the way in which he personally followed jobs through the various processes performed by the small crew consisting of 1 photographer and a platemaker or 2, who some- times doubled with the photographer as an opaquer , all of whom worked in the so- called preparatory department and 2 to 4 pressmen who worked in the pressroom. He was not interrogated, however, concerning the precise nature of Stone's duties. Showers, who is now working for Respondent in another capacity than that of production superintendent, was not called as a witness. As bearing on Stone's status, his testimony that the only time he expressed him- self with regard to hiring or firing his voice went unheeded and that he was not consulted concerning pay increases of other employees is more impressive than Harris' undocumented assertion that Stone had the right to fire or to recommend s29U.S.C.A.§152 (11) : The term "supervisor" means any individual having authority, In the Interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, re- ward, or discipline other employees, or responsibility to direct them or to adjust grievances, or effectively to recommend such action, if In connection with the fore- going the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. I 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD firing and that he would make such recommendations to Showers. The transmission of orders given by the superintendent to 4-6 employees supports the view that .Stone was no more than a leadman. The performance of such minor supervisory duties as helping in the selection of colors and telling a pressman to operate a free press places a working foreman in no higher than a strawboss category. As was stated by Judge Magruder in N. L. R. B. v. Quincy Steel Casting Co., Inc., 200 F. 2d 293, 296 (C. A. 1) "the legislative history of Sec. 2 (11) tends to support the Board's view that certain employees with minor supervisory duties, such as straw- bosses and leadmen, were not intended to be excluded from the coverage of the Act." Stone was far from the "front line of management ," running as it did down from Harris to Showers to Malis. If he were to be considered a supervisor there would be presented a quite unique proportional picture of 4 supervisors to 4-6 rank-and- file employees. It is quite apparent Stone's fellow workers looked not to him, but rather to Harris, Showers, and Malis as persons who represented the policies of management. I am of the opinion that Stone's position did not carry with it sufficient authority in the interest of his employer to direct other employees in their work in a manner requiring the exercise of independent judgment to warrant a finding that he was a supervisor as that term is defined in the Act. As to the 8 (a) (1) allegation respecting Stone, on conflicting evidence, I find that at about 11:15 a. m., September 30, 1953, Malis came into the pressroom and told Stone that Harris had telephoned that Stone should tell all of the five employees who were working in the preparatory department and the pressroom that they were fired and should be out by 12 noon. For confirmation, Stone telephoned Harris who told him.to do'as he•said, to fire everybody and that he wanted them all out by 12 o'clock with the exception of Stone. When Stone asked Harris what he pro- posed to do with only himself remaining in the pressroom, Harris said he intended to get a new crew. Harris asked Stone why he wanted to stick with the Union and stated that he could have a steady job if he went along with him. Stone replied that unless the new men came from the Union he could not stay with the Company. On request, Stone stayed on the job for 2 or 3 days to complete the printing of 2 orders. On October 5, 1953, Harris told Stone, who had been called to Harris' office, that he was foolish to keep on with the Union but that as long as he would not consider giving up his card he would have to let him go. Harris also told Stone that he could get him a card from the Printers Union, that he could have a good steady job, and that the Union had supplied poor workmen and he would find a -crew which Stone could train. Stone told Harris that he could not work in the shop with nonunion labor and Harris stated that being so, they would have to call it quits.3 I am of the opinion that the proof that Harris told Stone if he would go along with him he could have a steady job but that if Stone would not give up his union card he would have to discharge him, clearly establishes the allegation that Respondent offered Stone a reward if he should give up his membership in the Union and threat- ened to discharge him if he did not. This is a violation of Section 8 (a) (1) of the Act. a Harris' version of his conversations with Stone was that : On September 30, he told Stone that Respondent was going to lay off the shop, and asked Stone to stay and com- plete two unfinished jobs; on October 5, Stone reported that he had finished the work; he explained to Stone that it was impossible for Respondent to operate with the poor calibre workmen who had been supplied by the Union ; he was thinking of closing down in which event he did not know what he could do with Stone because there would be no preparation department and no work for the presses ; and, he asked Stone what his reac- tion would be if Respondent should decide to open up with both union and nonunion em- ployees and Stone replied that because of the Union he could not work in a shop with nonunion labor. Harris denied that he asked Stone to give up his card in the Union or told him he could get him a card in the Printers Union. There was no great disparity between Stone's and Harris' testimony concerning the latter's characterization of the type of men supplied by the Union and the intimation that Stone could or might remain with Respondent as working foreman over a crew including nonunion employees . It is ap- parent from Harris' own testimony, to the effect that he agreed with Stone that his mem- bership in the Union was a valuable asset and that since he could not work except with union men , that Harris realized that Stone's remaining would entail his renunciation of, ,or his dismissal by, the Union. On Harris' testimony, standing alone, therefore, it is reasonably inferable that he was conscious of the fact that his offer of continued em- ployment was contingent upon Stone no longer remaining a member of the Union. MARLO OFFSET PRINTING CORPORATION 849 B. Discrimination The General Counsel contends Respondent discharged its entire working force,4 all of whom were members of the Union, because of its desire to rid itself of the Union and to run a nonunion shop. Respondent contends that it discharged all the force except Stone, solely because of inefficiency and that Stone resigned. Levitt worked for Respondent as a pressman for $125 a week for about 10 weeks before he was discharged on September 30, 1953, by Malis who gave him no reason for the discharge. • He' operated a small Webendorfer,•press of a type upon which he had-had`33'years' experience. He had been told by Malis and one of the superin- tendents that he was turning out nice work. Among other jobs he ran on this press was 12,000 copies of what is called "the portable mixer job" (which, as will appear later, Respondent asserts was an example of poor workmanship which contributed to the decision to discharge the entire crew). Malis complimented him for the fine register, fine half tone, and fine print job in general. Neither Malis nor any other supervisor ever expressed any dissatisfaction to Levitt about his work. There was nothing wrong with the press to which he was assigned and Levitt found it pretty satisfactory. For a brief period, he was assigned to what is referred to as "No. 2 press" which was usually operated by Seman, during the latter's absence from the shop. He had a lot of difficulty with the No. 2 press and bad work resulted. Levitt pointed out to Malis that the press was ruining the plates and its condition was such that the plates would not last too long. Menchik started to work for Respondent as a photographer in early February 1953, starting-at $125 a week. Although'_the-regulations of the Union prohibited a photog- rapher doing the work of an opaquer; permission was procured from the Union for Menchik to do both types of work. Menchik had been employed as a photographer more or less steadily since 1938. During the years he had occasionally done some opaquing. Otto Soehren, who was engaged as foreman of the shop, with authority to hire, on February 2 or 8, 1953, and remained until he resigned during the third week of September 1953, complimented Menchik on his work several times. At a time when Menchik asked for and received a raise in pay to $135 a week, Harris told him Respondent was satisfied with his work. He was informed that he was fired on September 30, 1953, by Stone, who gave him no reason. Menendez went to work as a platemaker for Respondent at $140 a week about 2 weeks before he was discharged on September 30, 1953, by Malis, who gave him no reason for the discharge. He has had 23 or 24 years' experience as a plate- maker. Previous to coming with Respondent, Menendez had worked for Daniel Murphy and Company as a photocomposer and platemaker for about 5 years, his last pay having been $131 a week. Before that he had been employed by Respond- ent for about 8 months in 1948 or 1949. He returned to the Murphy Company's employ after having been discharged by Respondent and continues to work there. Some plates for the portable mixer job which had been made before Menendez came on the job and which had been used on the No. 2 press, which he testified "jumps like the dickens," had worn off. Menendez made over about 5 or 6 plates on that job. Menendez showed Showers plates that he had made for other jobs that were going smoothly and Showers told him they looked nice. Seman who has been a pressman for approximately 10 years, was hired at $115 a week in May. After the second week he was raised to $120 a week. No super- visor or anyone from management ever commented on the quality of his work. On September 30, 1953, Stone told him he was discharged. No reason was given. He was assigned to work on No. 2 press. He observed that the press was old and in poor condition. One side of the roller was worn away and when the pressure went around it, the roller touched the plates and wore them out. As a result it was only possible to run off an average of 3,000 (with a minimum of 500 and a maximum of 6,000) reasonably good sheets before it became necessary to stop the press and wait for a new plate. He drew Malis' attention to this condition shortly after starting work and later Harris came to where he was working and Seman stopped the press, showed him the printing sheet, and told him what was wrong. Harris said he would see what could be done about it and Malis told him the press was going to be fixed, but as far as he knows nothing was done.5 4 This force comprised the classifications of photographer, platemaker, opaquer, and stripper who worked in the preparatory department and pressmen who worked in the press department. 6 There is evidence that on August 25, 1953, a water adjustment stud was installed on a Big Chief press-and that damp rollers were reset and the water motion was adjusted. kh 850' DECISIONS OF NATIONAL LABOR RELATIONS BOARD, Zeccola had worked at $140 a week 6 for Respondent as a stripper and also, with permission of the Union, as an opaquer for approximately 5 months when on September 30, 1953, he was told that he was discharged by Stone who said that Harris had called up and said that everyone except Stone was to go at noon. After he had been at work for about 2 months, Soehren told him his work was good and in effect that to hold a job with Respondent he could hold a job anywhere. Zeccola has been in the offset printing field 22 to 24 years and is familiar with the entire process. He testified that usually two plates are run for a color job if all conditions are perfect, but if there is a defect in the press the work on the plates is rubbed off and more plates have to be made. Stone testified that during the period from April to October 5, 1953, while he was working foreman the only disparaging comment made about the calibre of the crew by either Harris or Showers was the previously alluded to reference to Vessely, that, no job ever had to be redone and that he was never told that any of the jobs could not be used.? He further testified that: No. 2 press always gave trouble because the plates got weak in a certain area; there was trouble in running "the portable mixer job" on it; he told Showers and Malis, a number of times, that the plates walked off in a certain area all the time and became stretched and put out of register and that he believed something was wrong with the water motion; Showers said he would look into the situation and a private mechanic came 'and did some work on the press which was unrelated to the water motion but did' not completely fix it and there still was trouble; later on a Webendorfer mechanic came up but the press was not completely repaired prior to the discharge of the whole shop; and, that no color job was ever run off without prior approval of the color from the office. Allen Olmstead, business agent for the Union, testified that: He started dealing with Respondent early.in 1949 when a collective-bargaining agreement terminating January 31, 1950, was entered into; the Union agreed to send ,men to Respondent as needed; this having been the first contract, the Union agreed that Respondent could. operate at the start with less than 4 men although the contract called for a minimum of 4; in 1951, after the 1949-50 contract was renewed, Harris was desirous of hiring on a temporary basis when Respondent had a rush of business and told Olmstead he wanted the Union to supply him with temporary help in the same man- ner as Local No. 51 of the International Printing Pressmen and Assistants Union, AFL, customarily did; he told Harris the Union had no such arrangement but that he would present the proposal to his superiors; and, the Union declined to comply with Harris' request. It appears that another occasion in 1951, Olmstead discussed with Harris the giving of advance notice of overtime work to employees. The contract did not expressly provide for a 24-hour notice but such was the area practice and the con- tract contained an area practice clause. Harris was dissatisfied with the Union's request that Respondent adhere to the practice. The 1950-51 contract expired on April 12, 1952, and, as will be seen, no new contract has been negotiated. On September 12, 1952, at a time when the preparatory department was shut down but the press department was in full operation, there was a further discussion about operating with less than the full complement required by the two expired con- tracts and the proposed new contract. Olmstead stated he would discuss this situa- tion with-his organization and that he did not think it presented any problem. Harris also requested complete freedom to assign work back and forth in the preparatory department to any employee regardless of his particular classification. The Union denied this request. On January 12, 1953, Harris told Olmstead that he wanted to reopen the prepara- tory department but that he could not do so with the full complement required by the contract and that if the Union would not allow him to'operate with less than a full complement, Respondent would sign a contract with the Photoengravers and Printing Pressmen's Union which would allow him to operate without restric- tion as to complement. Harris added that the Union was too strict in its interpre- tation of the contract and that Olmstead should close his eyes more often. On January 29, 1953, Olmstead notified Harris that the Union would grant his request. In April or May 1953, Harris told Olmstead, who called at his office, he could not understand the Union's position with respect to giving advance notice of over- time work and that the Union was too strict about not allowing its members to 6 One hundred and forty dollars a week was in excess of the union scale and was paid because doing extra opaquing in addition to stripping entailed a greater amount of work than stripping alone. 7 Stone denied Harris' assertion that he agreed with Harris that the men's work was not good. MARLO OFFSET PRINTING CORPORATION 851 work during their lunch hour without special permission and that he, would move his business to Bridgeport to get away from the Union. On August 5, 1953, an advertisement was inserted by Respondent in The New York Times under "Help Wanted-Male," reading "Offset Plant Superintendent, camera, stripper, three pressmen (Webendorfer experienced only), working press- room foreman, wanted by progressive open shop organization. For the men we choose, we will pay as much as 50 percent over scale. Don't waste your time or ours unless you are tops in your line here." Upon learning of the discharge of Levitt, Menchik, Menendez, Seman, and Zeccola, Olmstead met Harris at the latter's office and inquired what he was intend- ing to do. Harris said he was closing the shop, that he was undecided what to do with it but would probably try to sell the business and if he could not sell it he would move it to Bridegport. Subsequently advertisements were inserted in The New York Times by Respondent calling for a combination cameraman and stripper, a combination stripper and opaquer, and two experienced offset pressmen. Upon learning of these advertise- ments Olmstead telephoned Harris, who stated he was going to run an open shop, that he was through with the Union and wanted no part of it. Harris testified that: Shortly after the 1950-51 contract had expired on April 12, 1952, he told Olmstead that he would not sign a renewal unless he was sure the Union would supply him with proper help; on September 30, 1953, he'told Sfdne that he was to lay off the other men in the crew and that Stone also was through but that he should wait a few days to finish off the two jobs; he did not himself speak to the men; 8 he asked Stone what his reaction would be if he opened up with some union and some nonunion employees; since Stone told him he could not work except in a completely union shop he told Stone they would have to call it quits. There is a union regulation that employees shall be paid 3 days' severance pay when they are discharged. Harris paid Stone this amount and discharged, him. Harris stated that the difficulty arising from the Union's rule. about having a certain minimum crew was only one of the items and not a very serious bone of contention. He asserted that the main reason for the difficulty was that the work came out in terribly bad fashion and the men were of no use to him. As bearing on the question raised by Respondent's defense that the employees in question were discharged for cause, several exhibits in the form of copies of work said to have been done by them were introduced into the record. In brief, it is Respondent's contention that these exhibits support its position that the crew was incompetent. In general, it is the General Counsel's position that the exhibits do not establish the claim that the crew turned out poor work, or if they represent work not of the highest quality, any deficiencies were due to a defective press or approved by Respondent's officers before completion or being turned out in quantity. As great emphasis was placed upon these exhibits and much testimony concerning them was given during the course of the hearing, more than passing reference should be made to them. In order that the body of this report may not become turgid with detail, such analysis and discussion of the exhibits as it seems necessary to indulge in will be found contained in the attached appendix which is marked "Appendix B." Respondent's counsel submits in connection with the 8 (a) (3) phase of the case, that it is not incumbent on Respondent to prove that the individuals who constituted the unit were in fact incompetent. This is true in the sense that unless the General Counsel makes out a prima facie case of discrimination, the question of the reason underlying the discharges need not be reached. The General Counsel premises his claim of discrimination on the theory that the men were discharged because Respondent was dissatisfied with the Union's enforcement of various working rules embodied in the contracts or generally applicable in the area and displeased with the Union's unwillingness to furnish it with temporary employees. I am convinced that the General Counsel has shown by a fair preponderance of the evidence that Respondent objected to the Union's insistence that Respondent comply with such rules as giving reasonable notice when overtime work was desired, the scheduling of vacations, maintaining a crew of prescribed size, and not working men in other than their fixed classifications. These showings point strongly to the inference that Respondent became dissatisfied with the Union and eventually deter- mined to run an open shop and, as Harris told Olmstead, to have no part of the Union. This inference has further support' in the advertisement of August 5, 1953, for an "open shop" with its strong implication that prospective employees would be unrepresented and Harris' request of his superintendent, Soehren, that he help him In an affidavit to the Board Harris stated, "I told the men myself." h. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD start another shop with nonunion help.9 These circumstances 'lead me to the con- clusion , that the discharge of Levitt, ^Menchik, Menendez, Seman , and Zeccola,was prompted by Harris' opposition to them ' ia..their- capacity ascmembers of the'Union from which he desired to be freed, but could not get rid of, so long as theyremained in Respondent's employ. Thus it became apparent that the General Counsel made out a prima facie case of discrimination . That being so, it devolved upon Respondent to go forward with evidence seeking to control or rebut the testimony adduced by the General Counsel -as part and parcel of its affirmative averment that these employees "were discharged for cause and because of their inadequacy and inability satisfactorily to perform the duties of the jobs assigned to them." In order to gauge the force of Respondent's attempt to meet the General Counsel's case, consideration should be given,in,the first place to the question of whether in fact the five were inefficient and incapable. In Appendix B, I have undertaken somewhat exhaustively to discuss this question and have come to the conclusion that it must be answered in the negative. These - men had had from 15 to 33 years' experience in the type of work they were perform- ing for Respondent . None of them found difficulty in finding and holding positions, before they came to Respondent or after Harris had them discharged. Although I am inclined to believe that some of the samples Harris chose to select from among the many jobs worked on during the period in question disclosed work not of the highest quality in all respects,1° there was a failure to show which , if any, of the five men were respectively accountable for any of the various imperfections or that they disregarded instructions. Lack of proof that the men were incompetent goes far to show that they were not .fired for the reason advanced by Respondent . But that does not conclusively estab- lish the fact that they were discriminatorily discharged. The burden of proving that fact rests upon the General Counsel. I am convinced that he has borne that burden, has made out this aspect of the case by a preponderance of the evidence on the en- tire record, and that Respondent 's evidence singularly failed to rebut the fact. Re- spondent's argument that it has successfully shown the discharges were made for cause blurs the distinction between a thing attempted and a thing achieved. I find that the reason for the discharges of, and the refusals or failures to reinstate, Levitt, Menchik, Menendez , Seman, and Zeccola was because they belonged to the Union, i. e., because, as alleged, they joined or assisted the Union. Thereby member- ship in a labor organization was discouraged in violation of Section 8.(a) (3) of the Act. I further find that by such conduct Respondent has interfered with, re- strained, and coerced its employees in violation of Section 8 (a) (1) of the Act. Respondent defends the allegation that Stone was discriminatorily discharged by asserting that he resigned. On the basis of Stone's credited testimony that Harris: told him that since he would not consider giving up his card and of Harris' testimony that he told Stone that since he could not work' except in a completely union shop they would have to call it quits and of the fact that Stone was paid the 3 days' separa- tion pay to-which a discharged employee was entitled under the contract, I find that Stone did not quit but, rather, that he was discriminatorily discharged in violation, of Section 8 (a) (3) of the Act. C. The refusal to bargain The answer admits and I find that all lithographic production employees employed at 601 West 26th Street, New York, exclusive of sketch artists, sales, professional, office, and clerical employees , the superintendent , and all other supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act. , On May 9, 1949, Respondent and the Union entered into a collective -bargaining agreement which terminated on January 31, 1950. On June 29, 1950, the parties entered into a second collective-bargaining agreement which terminated on April 30, 1952. Shortly thereafter Olmstead talked with Harris about a new contract for 1952-54. Harris asked Olmstead what changes the Union was seeking and 0 This aspect of the case must also be considered in the context of the facts surround- ing the inability of the Union to renew its collective-bargaining, agreement with Respond- ent, a subject that will be dealt with in the following main section of this report. 10 Yet, Harris' testimony unsupported by Showers or customers and often refuted by Soehren and Stone fails to satisfy me that the work done by the members of the dis- charged crew was markedly inferior to that done by average artisans in the trade or by the working force which supplanted them. MARLO OFFSET PRINTING CORPORATION 853 Olmstead gave him a brief breakdown-of• what the Union wanted to negotiate into, a •new_contract. Harris claimed he' was willing to agree to any contract- which -the. Union would negotiate with Metropolitan Lithographers Association (an organiza tion of printing concerns of which Marlo was not a member). On August 5, 1952, the Union sent Respondent a letter saying that a tentative- agreement had been reached by the Lithographers Association and the Union and, stated that if Respondent would sign and return in duplicate a form listing 10 items tentatively to be incorporated into the new contract, all sanctions would be lifted im- mediately. Respondent failed to return the forms to the Union and on September- 12, 1952, Olmstead conferred with Harris. The latter, as he had also done previously, requested permission for complete freedom for any employee to do any particular job that was open or had to be done in the preparatory department. This request was refused. On September 26, 1952, the Union sent Respondent three copies of the completed standard contract, to which the Lithographers Association had agreed, for signature and return. Respondent failed to sign or return the contract. On January 22, 1953, after the preparatory functions of the shop had been dis-- continued for a period, Harris told Olmstead he wanted to resume that work but- could not do so unless allowed by the Union to operate with less than the complement required by the contract. Harris stated-as has already been recounted-that he had been in contact with the Photoengravers and Printing Pressmen's Union and discussed' with it the possibility of representing the employees doing preparatory work, that this union had said it would allow him to operate with any complement he saw fit, and if the Union would not accede to his request to be allowed to operate with less. personnel than required by the contract, he would sign up with the Photoengravers and Printing Pressmen. On January 29, Olmstead telephoned Harris that the execu- tive board of the Union had approved his request to operate with less, than the re- quired complement. On this occasion Olmstead repeated his request that Harris sign the contract which had been sent him 4 months earlier. Thereafter Olmstead telephoned Harris on numerous occasions requesting that he sign and return the contract. Harris continually said that he was going to sign the- forms and send them in and offered the excuse that he was busy. As has previously been noted, Olmstead talked to Harris at the latter's office in April and May 1953 where the conversation about overtime rules, moving to Bridgeport, running an open shop; and getting away from the Union took place. On this occasion, as on many others,, Olmstead reminded Harris that he had not signed the contract. Several' months passed away without the new contract being signed or returned and shortly before July 20, 1953, Olmstead once again telephoned Harris about the contract. Harris then claimed that he had misplaced the copies, requested that three more be sent him and asserted he would sign them. On July 20, 1953, Olmstead sent Harris- three more copies of the agreement with a letter in which he stated that he saw no- reason for any further delay. The contract was never signed. Instead, just 1 year to a day after it had been re- quested to sign the form listing the items tentatively to be incorporated into the new- contract, Respondent, on August 5, 1953, placed its "open shop" advertisement and- on•September 30, 1953, discharged all of its employees except one who was retained to complete some work who, in turn, was let go 5 days later. Respondent then re- opened its shop with an entirely new crew of employees 4 to 6 weeks later. It is fundamental that the Act requires an employer to bargain in good faith with respect to wages, hours, and other terms and conditions of employment, or the nego- tiation of an agreement or any question arising thereunder. The entire sequence- of events clearly indicates that Harris, despite his assertions to the contrary, never intended to renew the agreement that terminated April 30, 1952. It is incredible that he meant what he said when he repeatedly asserted he would sign the new con- tract but did nothing about it for a year despite repeated urgings by the Union. It is equally beyond belief that he did not sign because he was too busy to attend to the matter during this long period. The excuse given after 9 months of evasion that all' 3 of the contracts sent him on September 26, 1952, were lost (the contract terminating January 31, 1950, was ' an 18-page printed booklet and that terminating April 20, -1952, was a 25-page printed document), if genuine, in no way explains Harris' subse- quent failure to sign the duplicate copies sent him on July 20, 1953. Assuming, arguendo, that Respondent was not invariably pleased with the work performed by all the members of the Union it employed, its lawful relief would have been to dis- continue the employment of employees it did not consider satisfactory rather than, to have equated incompetency with union membership by refusing to deal with a• union which employees had a right to designate as their collective-bargaining repre- sentative . Inefficient employees are entitled to the benefits of collective bargaining- as well as efficient employees. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As has been pointed out in connection with the discussion of the 8 (a) (3) aspect of the case-with which the 8 (a) (5) aspect is inextricably bound up-Harris re- belled against the enforcement by the Union of various working rules. Harris' lack of intent to bargain with the Union despite his repeated promises to the effect that he would sign the contract is clearly revealed by his advertising for help to work in an open shop and his importunities to Soehren to help him run the shop with nonunion employees. Were this not enough, Harris' determination not to bargain with the Union is unmistakably disclosed by his statement to Olmstead, after the crew had been discharged and after advertising for a new group of combination preparatory section people and pressmen, that he was through with the Union and wanted no part of it. The entire course of Harris' conduct makes it manifest that not only did he intend to avoid bargaining but also sought to accomplish that evasion by getting rid of all the members of the Union and thereby destroying its majority. Thus it be- comes plain that Respondent failed to comply with the requirement of the Act to bargain in good faith with respect to the negotiation of an agreement. It came not to, nor did it even approach, a bargaining table "with an open mind and purpose to reach an agreement." L. L. Majure Transport Company v. N. L. R. B., 198 F. 2d 735, 739 (C. A. 5). Rather it held itself aloof in the hope of wearing down the Union by attrition. Accordingly I find, on this record, that Respondent refused to bargain with the Union within the meaning of Section 8 (a) (5) of the Act. I further find that by said refusal to bargain Respondent has interfered with, restrained, and coerced its employees within the meaning of Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connec- tion with the operations of Respondent described in section I, above, have a close, .intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that Respondent has engaged in certain unfair labor prac- tices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent has refused to bargain with and to sign a contract with the Union as the exclusive representative of its employees in the unit found herein to be appropriate within the meaning of Section 8 (d) of the Act. It will therefore be recommended that Respondent bargain with the Union. It has also been found that Respondent discriminatorily discharged Arthur Levitt, Irving Menchik, Joseph L. Menendez, Michael George Seman, Victor Zeccola, and Wallace Stone. It will be recommended that Respondent offer each of them im- mediate and full reinstatement to his former or substantially equivalent position without prejudice to seniority or other rights and privileges, and make each of them whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he normally-would have earned as wages from the date of the discriminatory discharge to the date of Respondent's offer of reinstatement, less his net earnings, during that period (Crossett Lumber Company, 8 NLRB 440, 497-8), said back pay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289. The Respondent upon request shall make available to the Board its payroll and other records to facilitate the determination of the amounts due. It has further been found that Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act by offering an employee a reward if he should give up his membership in the Union and threatening to dis- charge him if he did not. In view of the nature of the unfair labor practices committed, particularly the discriminatory discharge of six employees, there appears an indication of intention by the Respondent to defeat the fundamental purposes of the Act and the self- organization of its employees. In order to insure the employees here involved their full rights guaranteed by the Act it will be recommended that Respondent cease and desist from in any manner interfering with, restraining, and coercing its employees in their rights to self-organization. See May Department Stores v. N. L. R. B., 326 U. S. 376. Upon the basis of the foregoing findings of fact, and upon the record as a whole, I make the following:, MARLO OFFSET PRINTING CORPORATION ' 855 CONCLUSIONS OF LAW 1. Amalgamated Lithographers of America, CIO, Local No. 1, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. All lithographic production employees of Respondent employed at its 601 West 26th Street, New York, New York, plant, exclusive of sketch artists, sales , profes- sional, office, and clerical employees, the superintendent, and all other supervisors as defined in Section 2 (11) of the Act , constitute a unit , appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. The Union was on May 9, 1949, and at all times since has been the exclusive representative of all the employees in the appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain with the Union the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Wallace Stone, Arthur Levitt, Irving Menchik, Joseph L. Menendez, Michael George Seman, and Victor Zeccola, thereby discouraging membership in the Union , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By the foregoing conduct and by offering an employee a reward if he should give up his membership in the Union and threatening to discharge him if he should not, the Respondent has interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX A Corrections of the Record Page 124, line 15-"and that is the impression he had" is corrected to read "and that is the impression I had." Page 125, line 12-"thought he candidly admitted that it is his purpose, even though" is corrected to read "thought he candidly admitted that compliance is his purpose, even though" Page 161 , line 7-"union, never even solicited membership of these people, has no" is corrected to read "union never even solicited membership of these. Mario has no . Page 233 , line 13-"the case, asks his question is not only disconcerted when he is asked to state his purpose and also that is the end of that line of cross-examination. I suggest that this is not out of line and that the objection to the question on cross- examination should be sustained ." is corrected to read "the case, asks his questions, it is not only disconcerting when he is asked to state his purpose but also that is the end of the effectiveness of that line of cross-examination . I suggest that this is not out of line and that the objection to the question on cross-examination should not be sustained." . Page 234, line 9-"I will state the purpose. If there is any validity to my original observation to the difficulty in asking counsel to indicate for the purpose of the line of examination, not only on direct examination , but more definitely, of course, when you are dealing with cross-examination where the range to your approach at any given point may perhaps start in left field but wind up where you intend it to line up is very different and material." is corrected to read "I will state the purpose. If there is any validity to my original observation as to the difficulty in asking counsel to indicate the purpose of a line of examination , not perhaps on direct examination, but more definitely , of course, when you are dealing with cross-examination, where the range of your approach on any given point may perhaps be to start in left field but wind up where you intended to, to line up the witness is very different and material." Page 234, line 19-"and that to operate with" is corrected to read "and that it operates with" Page 244, line 19-"I didn't suggest he had asked you that" is corrected to read "I didn't suggest he had to ask you that." 379288-56-vol 113-55 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Page 246, line 10-"that your men couldn't be employed only through the union hall?" is corrected to read "that- your men can be employed only through the union hall?" _ Page 247, line 23-"you would have an objection to it?" is corrected to read "you would have no objection'to it?" Page 247, line 25-"will you in fact have had an objection to it?" is corrected to read "would you in fact have had an objection to it?" Page 248, line 15-"That is not your testimony?" is corrected to read "That is `no'-your testimony?" Page 261, line 16-"their dissatisfaction by the employer with them as well?" is corrected to read "the dissatisfaction by the employer with them as well?" Page 409, line 2-"although more than the union scale, partly establishes the." is corrected to read "although more than the union scale, hardly establishes the" Page 434, line 2-"but if the refusal as such." is corrected to read "but if the refusal to sign as such." Page 437, line 17-"Did you work as a production plant during 1953?" is cor- rected to read "Did you work as a production man during 1953?" Page 447, line 13-"As a production man, Mr. Harris," is corrected to read "As a production man, Mr. Malis," Page 711, line 14-"men thought Showers was unreasonable and they did com- plain." is corrected to read "men thought Showers was unreasonable and he did complain." Page 712, lines 12 and 13-"of this case, that he does find overwhelming proof, so meager proof, so completely lacking of essential elements." is corrected to read "of this case, that he does find overwhelming, proof so meager, proof so completely lacking in essential elements." APPENDIX B SAMPLES OF RESPONDENT'S EMPLOYEES' WORK Respondent's Exhibits Nos. 2 and 3 Respondent's Exhibit No. 2 is an advertisement for a General Electric portable mixer. Malis testified that. A'small quantity of these were returned by the customer; approximately 3 weeks after the work was started on this order, Seman, who op- erated press No. 2, told him that due to the press being bad he would get a poor job from it, that the cylinder was not level, was worn unevenly and was wearing the plates down on one side; a week after the job started he asked Stone why the yellow wasn't equally and evenly distributed, and Stone said an effort would be made to get the, color up a little more evenly on the-press and Seman said the plates were'no good, the red overlaps the black outline on the left side of the bowl, the yellow covering overall on one side of the reply card is very uneven and washed out where the red meets the black area near a hand holding the mixer, the black overlaps the red at certain points; the yellow on the section where there is printed "Special Free Gift Offer" is not equally distributed and shows lighter and darker areas, and is an entirely different yellow from that on the back of the reply card; the black broken line on the right side of the front of the reply card does not line up with the edge of the red band_ which is above it; the color in the pan is not evenly distributed; approxi- mately 31/z weeks after the order was started, Levitt, the pressman on No. 4 press, said the plate was not good; approximately 21 plates were used on this order; and, the order was finally done over on a letterpress rather than photo-offset before it was finally shipped to the,customer. President Harris testified that: The job was not right, it is out of register and the color-is bad on both sides; Malis was too fussy in pointing to the black broken line on the right side of the front of the reply card and the edge of the red band which is above it, such not being an issue; rather than saying the registry is not bad, let say it isn't good; it is good enough; the perforated lines do not coincide with the broken line but that isn't very important; it had nothing to do with the printing;. the separation between the perforation and the black line on the back of the return post card was done deliberately; there is a difference between the yellow in the cup and the yellow on the back of the return post card; the colors should match on any one side of the sheet; if a man is lax and runs a sheet through vertically it is really possible to have darker and lighter colors alternate; the red plate is out of register on the bulk; the red dot opposite the words "Power to Spare" is lower than the red dot opposite the words "Rubber Base Guard"; the red is out of register at the bottom and side of the cut but not sufficiently so for a customer to reject the job; Respondent sent 5,000 or something like that to the customer; he (Harris) junked the job; he MARLO OFFSET PRINTING CORPORATION 857 has no correspondence with the customer concerning this job; he cannot make a statement with respect to the halftone picture (the hand, mixer, and pot) without seeing and comparing it with the artwork; and, the job was completed on a letterpress. It was conceded that Levitt would testify that the yellow on the back part of the reply card was screened. He testified that: He ran a part of the job and, got a com- pliment on it; Malis told him he thought it was a terrific job; he ran about 12,000; he had no problem on his press; the other portion of the job was run on Seman's No. 2 press; he discussed with Seman the fact that No. 2 press was killing and ruining the plates; and, the condition of that press was such that the plates would not last too long. It was stipulated that Menchik would testify that the yellow on the reverse side of the reply card was screened. He testified it was clearly a tint. It was stipulated that Seman would testify that the yellow color on the reverse side of the reply card was screened. He testified that: He had a conversation with Malis in which the plates on the job were discussed; he told Malis that the press was wear- ing off the plate; the reason for the trouble on the portable mixer job was the press; some repair work was done on the press while he was on vacation in August; when he returned in September the press was very bad and it was in the same condition as it was when he had a conversation about it with Harris before he left on his vacation. Stone testified that: There were 3 or 4 setups on the job; 1 plate for 1 negative was made up; each time a plate was made it was stepped up 2 or 3 times; after a certain amount of time the plates stretched themselves on the setups with the, result that they would be put out of register to the succeeding colors that were run off; he had a conversation with Malis about what the plates had to do with difficulties that were occurring; he could tell by his bare eyes that color of the reverse side of the reply, card was not a solid because of the different color formation; when looking at it through a magnifying glass he can see dots indicating that it had been screened; type on the lighter color would show up much better; a pressman matches a color with a swatch or piece of material given him; he has to mix the color itself; he takes the color on his finger and taps it out on a sheet going into the run; he-runs the first copy off the press and if it is not exactly right he tries to change it; when he thinks he has a good match on copy, he takes it to the office for approval; and, he never ran off a color without first getting directions from the office. Former Superintendent Soehren testified that: He made some of the plates for the portable mixer job; the original artwork called for screening; the yellowon"the reverse side of the reply card shows little yellow dots with the white showing through, that was required in the specifications for the job; Harris and Showers issued instructions that there should be an okay sheet on every color job before it was run and the men got them; and, it is not a fact that even if the yellow on the reverse of the reply card is tinted (screened) the color should be visually the same to the naked eye. Respondent's Exhibit No. 3 is a duplicate form of Respondent's Exhibit No. 2 with the exception of the imprinting on both sides of the return post card. Malis testified that: This job was done on the letterpress and finally shipped to the customer on November 5, 1953; after Stone left on October 5, 1953, there was some work done on the water motion of press No. 2; he does not remember the date; he does not remember whether it was before the plant reopened or not; on August 25, 1953, some work was done on the water motion of the same press and he was told it was in good running order; he was supposed to see a job after some sheets had come off the press; Stone would 'bring samples of most jobs to him and ask him what he thought of them and he would say "send these up to Mr. Harris (or wherever they were going to be okayed) to okay"; he saw the artwork for the portable mixer job; he does not know, but more or less believes, that` on the artwork the yellow on the reverse of the post card was the same as the yellow on the cup; and, no repair work was done on the cylinder after the plant reopened on November 5, 1953. Harris further testified that: He thinks Exhibit No. 3 is better than Exhibit No. 2; perhaps the register was better; the duplicate of No. 2 is not substantially better than No. 3; the duplicate of No. 2 is a little better than the duplicate of No. 3; the register of the red color at the bottom of the bowl at the left is, well, a little better on Exhibit No. 3 than on Exhibit No. 2; they are about the same; Exhibit No. 3 is much clearer; Exhibit No. 3 duplicate is off even; the heavy black line enclosing the words "power to spare," "light weight," "rubber base guard" etc. is broken near the top at the left and also at the lower left hand corner in Exhibit No. 3, but is perfect in Exhibit No. 2; in that respect No. 2 is better than No. 3; the pot in No. 3 is darker than the one in No. 2, he considers the darker one better; the whole picture in No. 3 is better than in No. 2, it has more snap; there is an overlap where the red meets the black in No. 3. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there is no overlap in No . 2; he will not admit that in that respect No. 3 is inferior to No. 2; there is a dot next to the "b" in the word "portable" in No. 3, original and -duplicate, this is a defect ; those things are corrected as they come along ; the same thing applies to any defects in No . 2; he does not know whether there were other defects in No . 3 that were corrected ; he thinks the red at the top of Exhibit No. 3 is deeper and brighter than that in No. 2; the red in No. 3 has a good texture but is scratched from folding ; when a job is run, particularly at the beginning the crew sends some sheets up to the office to be seen and the reader there would catch defects; the yellow on the reverse of the post card is not exactly the same as the yellow on the cup on No. 3, but the colors are close enough ; and, the word "free" at the top of No. 2 is clearer on the register than the same word on No. 3. An inspection of the two exhibits shows that the halftone is darker, the yellow in the return card is stronger and the red in some of the printing is nearer the hue of the spectrum farthest from the violet in Respondent 's Exhibit No. 3 than in Respond- ent's Exhibit No. 2. These factors by no means satisfy me , however, that No. 2 is markedly inferior to No. 3. There is credible evidence , supported in part and un- denied in part by Malis and Harris , to the effect that in various criticized respects No. 2 was in reality well printed and that in various other respects it was better done than No.-3. For examples : the yellow on the reverse of the return card on No . 2 was screened according to specifications for the job and shows up a better type than the yellow on No. 3; the colors were run off after office approval ; Harris himself disagreed with Malis' unfavorable comment respecting a purported lack of coincidence between a perforated and a broken line; agreed that the registry is good enough , and not suffi- ciently off to warrant a rejection ; was unable to characterize the halftone ; agreed that duplicate No. 2 is in some respects a little better than duplicate No. 3; stated that the register of the red of the bottom of the bowl is about the same on each exhibit; admitted that ( 1) the top and bottom of the left black line in No. 3 is broken and perfect in No. 2, (2) there is an overlap where red meets black in No . 3, but not in No. 2, (3 ) there is a defect in No. 3-original and duplicate-that is not in No. 2, and (4) the word at the right top of No . 2 is clearer -on the register than on No. 3. Whatever may be the shortcomings of the work sample claimed by Respondent to have been unsatisfactory-and I again say that I am not satisfied either from a close examination of the exhibit itself and from the testimony that it is substantially inferior to the sample which Respondent asserts is satisfactory-the existence of those de- ficiencies is thoroughly explained by the fact, overwhelmingly established by the evi- dence, that the press on which the first part of the order was printed was in such poor condition that the plates had to be frequently replaced and the work could not satisfactorily, economically, and expeditiously be completed. The fact that Respond- ent finished the last 10 percent of the job on a letterpress is some evidence of its recognition of the fact that it could not be suitably printed on the offset press. Un- doubtedly the delay in delivery of the last part of the order was disturbing to both Respondent and its customers . But the order was" completed and accepted. The evidence fails to support the conclusion that any extra expense incurred by Respond- ent in making an abnormally large number of plates for the job was due to the ineffi- ciency on the part of any of the crew . Rather I am satisfied that it was due to the fact that, as Malis admitted he was told, the cylinder was worn unevenly and wore the plates down on one side. In my opinion, the exhibits themselves and the evidence concerning them fails to support the contention that Levitt, Menchik, Mendenez, Seman, and Zeccola, or any -of them, displayed incompetence in connection with the portable mixer job. Respondent's Exhibits Nos. 4 and 5 Respondent's Exhibit No. 4 is a 19-page booklet advertising General Electric elec- tric ranges. Malis testified that : The total order for this job was 75,000 copies; it was done on presses Nos. 1 and 3 ; work on the order started September 4, 1953; the first shipment of 5,500 copies was made on September 18, 1953; the shipment was not returned by the customer; about a half dozen samples were taken out by the customer; Exhibit No. 4 is one sample the customer returned ; it contained markings put in by the customer (some of which witness pointed out ); and, on page 2 the dif- ferent shadings on the right side of the top of the stove are wrong as against the left side. Harris testified that : The job represented by Exhibit No. 4 was assigned to two presses which would mean that 2 or 3 days would be more than ample to get out 75,000 copies; it took 14 calendar days to get out the job ; the exhibit was returned by the customer with notations on it , on page 2 the colors are not evenly MARLO OFFSET PRINTING CORPORATION , . , 859 joined,, the red is out of register on page 5; there is a bad overlap on page 3; it would be a little difficult to explain what went wrong or caused a particular fault; in some cases the reason for a grey result and a poor register may be the camera, may be the fault of a plateman, or may be the fault of the pressmen ; and, the order was completed by letterpress process. Harris further testified that : Respondent's Exhibit No. 5 is a sample of the same job a few over 70,000 of which were done by letterpress ; on page 6 the warmer draw is much clearer than in Exhibit No. 4; the broiler pan storage on page 7 has a better contrast between the side wall and the tray in No . 5 than in No. 4; and, one can easily see a difference between the pictures of the companion oven on page 4 of Exhibits Nos. 4 and 5 and of the deep fat fryer on page 5 of the two exhibits. Soehren testified that : Exhibit No. 4 was an advance run which had to be gotten out in a hurry, a very big run so it was split down to meet the customer 's demand to get the booklet speedly; if there were any alterations or corrections to be made, the men could have made them on the second run but they never got a chance to do it; he thinks it was a darn good job for what they got, the men were told to get part of the order out in a hurry; it was quite a job, all the pieces had to be put together and he does not think that a job of this character could have been done in any quicker time than 14 days; the advance run was printed before he left Respondent's employ; no one said anything about the job to him; he disagrees with Harris that 5,000 copies should not have taken more than 2 or 3 days; (contrary to the implication concerning 5,000 copies of counsel for Respondent in a question that elicited this testimony, Harris testified that 2 or 3 days would be ample time to get all 75,000 copies ) all the pieces had to be assembled, put into position, and that is why it took time; and, some of the halftones could have been a little bit better but in general he thinks it was a dam good job. Menchik testified that : He shot some of the halftones that are on the cover of Exhibit No. 4; there is a better contrast on the picture of the range in No. 5 than there is in No. 4; basically the artwork determines the contrast in the greys; and, he would say without question that the artwork for the picture of the fuse and ap- pliance outlets on the upper right hand corner 'of page 7 (this halftone was not clearly indicated by counsel but it is quite apparent that it is the one concerning which he interrogated the witness ) was altered between the time of the photograph for Exhibit No. 4 and photograph for Exhibit No. 5. (Upon considerable pressing of General Counsel, Harris rather reluctantly admitted that there was some different artwork in the two exhibits.) It having been Respondent's burden to go forward with evidence seeking to establish its affirmative defense that Levitt , Menchik, Menendez, Seman, and Zec- cola were discharged for incompetency , the evidence respecting this electric range advertisement should be viewed from the standpoint of whether or not it reasonably supports the contention that these five employees , or any of them, can be charged with poor workmanship in producing the book . It is quite apparent that the first relatively small part of the job was gotten out as a rush order , that in some respects it was not as finished a performance as it could have been if more time and pains had been taken and that after certain aspects of the job had been critically com- mented upon by the customer it was corrected or improved to the customer 's taste. For me to say, however, that Respondent has shown by a preponderance of the credible evidence that the workmanship of any one or all of the crew which pro- duced the work was faulty-and Harris virtually admitted he cannot attribute the results he considered unsatisfactory to any one specified person-would in my opinion be an unjustifiable assertion . Harris' eagerness to testify that whatever registries and halftones were called to his attention by the General Counsel were better in Exhibit No . 5 than in Exhibit No. 4, when even a casual comparison of them shows either the contrary or that there were no substantial differences, is destructive of his reliability as a witness. Respondent's Exhibit No. 6 This exhibit is one of the sheets of what is called the "GE Wax Polish " job. The sheet consists of four identical parts. President Harris testified that : The order was "far 100,000 copies ; work started July 30 and was completed on August 14, it was performed on presses 2 and 4, he does not know who the operators were; all 100,000 were sent to the customer who "chewed (his) ear off "; the customer re- tained the copies; the word "new" is out of register; the red does not dovetail with the green; and, the green on both sides should be the same and they are far from it. Former Superintendent Soehren testified that : Respondent's Exhibit - No. 6 is not representative of the work that was turned out ; he thinks there were better copies 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which had a better register; his' comment upon the exhibit is that the paper fanned out; in order to make the cuts in the sheet it was necessary to have the short grain of the sheet run the length of the cylinder; the grain in lithographing should run the length of the cylinder; it is the wrong way to print with the short grain running the length of the cylinder; you have a pile of paper on a skid , as the sheets come out they pile up; the top of the pile spreads out a little bit with moisture like the exhibit has gone 2 or 3 times ; when a first run is started the top sheets always fan out more than the others; as you get further down in the pile you get better sheets, better register; he made many visits every round, and he would say the biggest part of that job was more in register than the exhibit ; and, the job was perfect for the commercial work it was used for. Levitt testified that: He printed the pink strip lines but no part of the other side where there are pictures of cans of polish ; he saw the whole job after it was finished and it looked all right ; the exhibit is not representative of the job at all; and, the word "new" fitted in very well , while in the exhibit the word is out of register. A mere reading of Harris' testimony leaves one with a sense of confusion and uncertainty. The evidence he gave fell far short of satisfying me that any or all of the crew were so incapable and as inefficient in turning out this job as Respondent would have me believe. In this as well as in all instances with respect to which exhibits of work were introduced, there was a significant absence of testimony from any representatives of Respondent 's customers which might tend to confirm Harris' generalized and frequently vague criticisms or to indicate that orders were rejected as unacceptable. Respondent's Exhibit No 7 This is called the "Life and Post job." The order called for 13,000 sheets of stickers with 4 lines in white of the word "Life" and 4 lines of the words "the Saturday Evening Post ," each word or words appearing 16 times on each sheet backgrounded in red. Harris testified that : One of the plates for this job was made on September 9; he is sure the job was done in July or August 1953; the order must have been completed after the 28th ( month not mentioned ); the words "Life and Post" are one piece of artwork ; all are duplications made by camera ; the nega- tives are turned over to the stripper who lines them up; the stripper turns them (or it ) over to the plateman who makes the plate and the result goes to the press- ' men; all words are supposed to be exactly alike yet in some places the letter "s" is broken up and gets progressively worse whereas in other places the letter appears fairly good ; in some cases but not in others the cross bars in the "P 's" have disap- peared; the customer accepted the entire order, he had no choice; the job requires a good camera, a good negative, and a good plate; some , but not all, of the 5 lines were filled in; he is almost sure this job was done again 3 months afterwards; perhaps the job he is talking about was done prior to this; and , if he can find the other job he will bring to the hearing. ( No other exhibit representative of this job was offered for identification or in evidence.) Soehren testified that : Harris was right in saying that the work as represented by the exhibit was not good because a number of five white lines did not come out; the exhibit does not indicate any defect in the work because it is "bum " copy; the layout for the job did not give sufficient openings , when a certain amount of ink is run , there is always going to be a little bit of grow and spread ; some sheets were better than the exhibit which itself is bad; any imperfections were not the fault of poor workmanship ; the copy was too thin when it came in; a little lettering at the bottom was so small that as soon as a little color is run it filled in; the lines are not big enough to either run color or when color is gotten on, the lines fill in; the job was nobody's fault; the customer was in a hurry for it; the printing was poor but not because of the man running the press ; it was poor copy when it started out and sent in by the office and each step grew a little poorer; it is called reverse lettering; compared with other types of work , reverse lettering is the hardest thing to print especially when there is a fine line; and , the crew had to do the best thing it could with the fine white lines. On this state of the evidence and a study of exhibit, itself , I am unable to find that Respondent established by a fair preponderance of the credible evidence relating to the "Life and Post job" that it had an incompetent crew. Respondent's Exhibit No. 8 This exhibit represents a printing for Philip Morris and Co., Ltd., Inc., bearing on the front of the folder the words "Welcome to the Purchasing Dept ." Harris testi- fied that : Nothing is wrong with it except the color which was supposed to match MARLO OFFSET PRINTING CORPORATION 861 what is known as the Philip Morris red; the work was shipped to the customer on the 15th (month and year not mentioned ), one of whose printing buyers whose name he does not know told him that since Respondent could not match a color sample that had been given to it, it would be better if Harris told his contact man to stop going to see the buyer ; he had done no work for Philip Morris before this order and has done none since; the artwork was not done in Respondent 's office; the color selection would have nothing to do with the artwork; the men are supposed to match the color to the swatch ; he did not get a written okay sheet on the color; it does not happen in Respondent's shop that the pressroom ,foreman is instructed not to go ahead and run_a job until he had a written okay from the office; and, he does not remember a conversation with Olmstead concerning the propriety of the practice of having a written okay sheet for colors. Olmstead testified that: An okay sheet is generally accepted as a sheet that a pressman follows for color, lay, or position ; Harris showed him a sheet on the Gen- eral Electric job on which he pointed out that the color was completely off from the copy sheet ; he asked Harris for the okay sheet and he couldn't produce it; and, he pointed out to Harris the necessity for, and the practice of , procuring an okay sheet on every job and said that if he were a pressman he would refuse to run a job unless he had received an okay sheet from a responsible official of the Com- pany. Soehren testified that : The artwork for the job included a showing of the kind of red desired ; the swatch and the artwork were supplied by the customer ; Showers brought in the job and okayed the color before it was run; and the job was Showers' account. Stone testified that he never ran off a color job without first getting direc- tions from the office that the color was okay. Unobjected to hearsay testimony-such as what some unnamed representative of a customer said about a "contact man"-may be given some weight if it is sup- • ported by other competent evidence. But I perceive no competent supporting evi- dence. It is undisputed that this job , was procured by Showers, who it will be re called had previously been superintendent of the shop .' Likewise it is undisputed that Showers brought in the color swatch and approved the color before the job was run. No extended discussion is required to support the conclusion that if there was something "wrong" with this job , it was not the fault of any of the workmen. Respondent's Exhibits Nos. 9, 10, and 11. General Counsel's Exhibits Nos. 10, 11, 11A, 11B , 12, and 13 Respondent's Exhibit No. 9 is a blueprint of 4 of 6 pages of Respondent's Exhibits Nos. 9 and 10 and of 4 of '8 pages of Respondent's Exhibit No. 10 . They are identi- fied as the GE-Louisville Wiring Division job or the Sweets Catalog. Harris stated that work started for 20 ,000 units on September 15 (presumably 1953) on press No. 1, that no fault was found with the printing , and that as a matter of fact it was a fairly nice job. It will be observed in the left lower corner of the sheet of the blueprint-Respon- dent's Exhibit No. 9, headed by the words ' "Remote. Control Wiring System" ap- pears the numeral "5" and the abbreviation "amp," while in the same position in Respondent's Exhibit No. 10 appears the numeral "10" and the abbreviation "amp." With respect to this difference , it was Harris' testimony that : The job had been okayed with 5 amps and it was printed with 10 amps so 20,000 had to be done over with 5 amps; he would blame the stripper and the platemaker ; the stripper had stripped the job up correctly because the blueprints were made up from his negatives; this job was done 2 or 3 times a year ; and the stripper should have killed off the (previously ) 'existing negative but instead he picked up the negative on the previous job. General Counsel's Exhibit No. 10 represents a job that Harris imagines was sent out to the customer in 1952. Its pages , headed by the words "BX-Corvel" and "Construction Materials ," are duplicates of pages appearing in Respondent 's Exhibit No. 10. General Counsel's Exhibit No. 11 is a patched blueprint varying slightly in content from General Counsel 's Exhibit No. 10. General Counsel 's Exhibit No. 11A consists of four pages headed respectively by the words "Remonte-Control Wiring System," "Wiring Devices," "Wires and Cables," and "q-Floor Wiring" with blue- prints extensively pasted thereon . General Counsel's Exhibit No. 11B consists of blueprints pasted on white cardboard , the wording being the same as appears in the center of the page of General Counsel 's Exhibit No. 11B , headed by the words "Wiring Devices." Showers was not called as a witness. 862 DECISIONS -OF NATIONAL--LABOR- RELATIONS BOARD General Counsel's Exhibit No. 12 is identical with his Exhibit No. 11 and shows, as does Respondent's Exhibit No. 10, the numeral "10" and the abbreviation "amp." All of these nine exhibits with the exception of General Counsel's Exhibit No. 11B are in substantially similar format. - - As regards the various exhibits relating to the Louisville Wiring Division job in- troduced into evidence by the General Counsel, the intelligible part of President Harris' testimony was that: No. 10 was sent down only for color; the blueprints on No. 11B were made as a correction of the large blueprints pasted on No. 11A; No. 11 came to him on July 3, 1953, and was photographed and printed; a plate was made of No. 11 after photographing and what is on No. 12 was taken off the plate; No. 12 was printed 5 amps instead of 10, and he thinks it is identical with No. 11; somehow or other "he" picked up the old negative which read 5 amps instead of picking up the one that was on the current flat and that is the way the job was printed; it was picked up by the stripper or by the cameraman or somebody, he does not know who; neither he nor Showers nor Malis told the cameraman to pick out that negative; he never handed anything to the photographer; the negative had already been photographed; it could not have been anyone other than the platemaker or the stripper who picked up the wrong flat; No. 12 was run wrong; No. 13 was finally accepted; the customer's final revision and okay appear on No. 11 from which No. 12 was printed; No. 12 was printed incorrectly insofar as the panel is concerned, all other corrections he is quite sure were taken care of; No. 11 -is the sheets on which the mistakes on No. 12 were pointed out so that Respondent made corrections on No. 13; the customer marked up a piece of copy to show that No. 12 was wrong; No. 13 was printed in another shop on October 10-16 or thereabouts; the first shipment was made about October 16; by that time the shop had been closed; and, the reprinting cost him $1,000. Out of the dishevelment of former Superintendent Soehren's testimony concerning these nine exhibits, it can be gathered that: General Counsel's Exhibit No. 11 is a reprint of some old stuff with a few alterations-corrections; a group of blueprints had been submitted to the customer which it pasted into position as it wanted them; then it was sent back to the shop and the blueprint was made; Respondent's Exhibit No. 9 is not a complete job because it is only four pages; General Counsel's Exhibit No. 11B is the same set up on the right as on the right hand page of Respondent's Exhibit No. 9; the center column of the third page of Respondent's Exhibit No. 9 is a later version of the center column of the third page of the Respondent's Exhibit No. 11A; Respondent's Exhibit No. 9 was combined with four other pages, put on a plate and printed; General Counsel's Exhibit No. 12 is an exact copy of Respondent's Exhibit No. 9 and was probably done sometime in August or the beginning of September 1953; the blueprint was submitted to the customer after it was made and before the final plates were made; then the crew got an okay and went ahead and made the plates; plates are not made until an okay is received; when the work got back there was no indication that "5 amp(s)" in the lower left corner should have been "10 amp(s)" General Counsel's Exhibit No. 11A is a part,of an eight- page booklet; it was turned out at the very beginning of the process of printing out the job; he knows nothing about why it was that in General Counsel's Exhibit No. 11A which was turned out early in the process there appears "10 amp(s)" while "5 amp(s)" appears in Respondent's Exhibit No. 9; and, the stripper had nothing to do with putting in some film as material which resulted in printing "5" instead of "10" amps. Zeccola testified that: Respondent's Exhibit No. 9 does not look like the blueprint which was sent out to the customer; the blueprint which was sent to the customer, was returned with a marking made by the customer where one of the illustrations on the right hand inside page was upside down; the complete blueprint came back with an okay slip for the indicated corrections; the customer okayed it and the corrections it wanted were made; the blueprint which was sent to the customer was substantially like Respondent's Exhibit No. 9; there were no corrections on the customer's work respecting the numeral "5" and the abbreviation "amp(s)"; the blueprint with corrections was taken and the flat was corrected, according to the way the customer marked the blueprint; after the flat was corrected the blueprint was left with the job; there is a bag or a folder with copy and blueprint and so on which goes along with the job; General Counsel's Exhibit No. 11 does look like the blueprint that was sent out to the customer; it shows the corrections the customer made; General Counsel's Exhibit No. 11A was one made by pieces which were sent to the customer who pasted it up and it was the shop's dummy; it looks like the dummy from which the flat was to be stripped and made; on this dummy the numeral "10 amps" appears; and, as to why "5 amps" came out in the final product, the crew does not proofread, he did not pick it up, it is what was on hand, the reason it was CODY DISTRIBUTING COMPANY 863 sent to the customer was that he did not proofread it, and the customer is supposed to proofread it and send it back. In order to show that the crew was incompetent as claimed, it is of course in- cumbent on the Respondent to demonstrate the truth of its contention. One thing ' -that is clearly established is that through the oversight of someone a mistake was made in the printing of one numeral on copy which contained approximately 400 other numerals which were correctly reproduced. Just who was responsible, the evidence fails satisfactorily to indicate. Harris says he would blame the strippers or the platemakers, and again, that the old negative rather than the current flat was picked up by the stripper or the cameraman or somebody, but he does not know who. Soehren declared that the men received an okay before the final plates were made, and the strippers had nothing to do with putting in the material resulting in the error. Zeccola maintains that the proofreading is supposed to be done by the customer and the job was done according to the way the customer corrected and marked the blueprint. On this state of the evidence, I am unable to discern any convincing proof that by virtue of this error, any one employee in the shop-let alone all of the employees-can be charged with "incompetency and inability to satisfactorily perform the duties of the jobs assigned to them." Cody Distributing Company and Local 25, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen, Petitioner. Case No. 1-RC-406,0. August 19,4955 DECISION AND, ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William I. Shooer, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act for the following reasons: The Petitioner seeks a unit limited to the employees of the Employer whose plant is located in Boston, Massachusetts. The Employer is engaged in the distribution of malt beverages. The Intervenor con- tends that such a unit is inappropriate because it constitutes only a segment of the multiemployer unit which the Intervenor has repre- sented over a period of years. The Employer takes a neutral position on this issue. 1 Local 8, International Union of United Brewery, Flour, Cereal, Soft Drink and Dis- tillery Workers Union of America, CIO, was permitted to intervene on the basis of its contractual interest. 113 NLRB No. 98.