Clark Printing Co., Inc.

CLARK PRINTING COMPANY, INC. 121 Nor is. the pilot an independent contractor.8 Our guide in deter- mining such status is the application of the "right of control" test. If the person for whom the services are performed reserves the right to control not only the end to be achieved but also the means by which the result is to be attained, an employer-employee relationship exists. Put another way, as Judge Learned Hand stated, "The test lies in the degree to which the principal may intervene to control the details of the agent's performance; and that in the end is all that can be said ...." 8 The record, as indicated above, fully reveals that the pilot's temporary direction of the helmsman and other crew members is always subject to the captain's continuous independent evaluation of the circumstances surrounding the navigation of the ship. The pilot's functions are integrated into the shipowner's maritime opera- tions in a manner characteristic of an employer-employee relation- ship (see Restatement of the Law of Agency, 2d, sec. 220(2) (h), p. 489) and, in our opinion, these pilots are employees, "as a matter of economic reality." U.S. v. Silk, 331 U.S. 704, 713. Furthermore, it would appear that in the application of our super- visory and independent contractor standards to the peculiar nature of the maritime setting of this case, we should consider what appears to be the somewhat different and more rigid aspects of discipline and responsibility existing aboard ship. Thus, although certain testi- mony, standing alone, may point to some form of supervisory or independent contractor status, the record taken as a whole persua- sively indicates that the pilots are "employees" functioning under the strict authority and responsibility of the captain and should remain subject to the benefits and obligations of the Act. 8 Congress broadly viewed as employees persons who "work for wages or salaries under direct supervision ," and as independent contractors persons who "undertake to do a job for a price, decide how the work will be done, usually hire others to do the work, and depend for their income not upon wages, 'but upon the difference between what they pay for goods , materials and labor and what they receive for the end result, that is, upon profit." H. Rept 245 on H.R. 3020, 80th Cong., 1st sess., p. 18. 9 Radio City Music Hail Corp. v. U.S., 135 F. 2d 715, 717 (C.A. 2). Clark Printing Company, Inc. and Amalgamated Lithographers of America, Local No. 25,' affiliated with Amalgamated Lithog- raphers of America Clark Printing Company, Inc. and Amalgamated Lithographers of America, Local No. 25, affiliated with Amalgamated Lithog- raphers of America. Cases Nos. 17-CA-2138 and 17-RC-4050. February 26, 1964 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION On September 4, 1963, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled proceeding, finding that the 146 NLRB No. 10. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had not engaged in the unfair labor practices 'alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. The Trial Examiner further recommended that the challenge to Tierney's ballot in the election conducted in Case No. 17-RC-4050 be sustained. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this proceeding to a three- member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as noted hereafter.' The Trial Examiner has recommended dismissal of allegations that interrogation of two employees about their voting intentions in a forth- coming representation election was violative of Section 8 (a.) (1) of the Act. He relied on the Board's decision in General Electric Com- pany, 143 NLRB 926, and also found that interrogation as to one em- ployee, Barnard, was mere trivia and not coercive. The Trial Ex- aminer further concluded that the Respondent's use of an employment form requiring job applicants to disclose their union affiliation did not warrant a finding of a violation of the Act because use of the employ- ment form had been discontinued prior to the filing of charges here. We are reluctant to dismiss as trivia any interrogation of employees as to how they intend to vote in a pending representation election. Such conduct tends to undermine the very purpose of a -Board- conducted election, i.e., the opportunity for an employee to cast a secret ballot without the necessity of publicly declaring his position toward a proposed bargaining representative. The General Electric Com- pany case, supra, is distinguishable in that it did not involve specific interrogation as to employees' voting intentions. Inasmuch as the parties had previously consented to the election, the Respondent had no justification for such interrogation here. Moreover, in the General Electric case there were approximately 600 employees in the plant. In the instant case, the appropriate unit consists of approximately six 1 As there was no exception to the Trial Examiner' s finding that Tierney was not dis- criminatorily discharged in violation of Section 8(a) (3) of the Act, we adopt such finding pro forma. As this finding disposes of the contention that Tierney was entitled to vote in the subsequent election , we accordingly sustain the challenge to his vote in the repre- sentation case. CLARK PRINTING COMPANY, INC. 123 employees. In these circumstances, we find this conduct violative of Section 8(a) (1).2 While use of an employment form requiring disclosure of an indi- vidual's union affiliation is not per se violative of Section 8 (a) (1), no justification was offered for its use in this case. Moreover, discontinu- ing the use of such form does not render such conduct moot, as findings of violations and remedies therefor serve a preventive as well as a remedial purpose. In view of the unlawful interrogation of em- ployees and in the absence of any valid justification for inquiring into job applicants' union affiliation, we conclude that use of such employ- ment form was also violative of Section 8 (a) (1) of the Act .3 As noted previously, we sustain the challenge to the ballot cast by Richard Tierney in the election conducted in Case No. 17-RC-4050. As the Petitioner did not receive a majority of the votes cast, we shall issue a certification of results of the election to that effect. THE EFFECTS OF. THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with its operations as set forth in the Intermediate Report, 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. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action which we find necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Clark Printing Company, Inc., is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Amalgamated Lithographers of America, Local No. 25, affiliated with Amalgamated Lithographers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 2 Lincoln Bearing Co., 133 NLRB 1069 , 1070, at footnote 3. . Member Brown did not 'partial pate in the General Electric decision . Without affirming the distinction drawn between the cases insofar as it implies that the different result was warranted in General Electric, Member Brown agrees that Respondent violated Section 8(a)(1) herein. . $ See Schott Metal Products Company, 128 NLRB . 415, at 430 ; TransamericanFreight Lines, Inc., 122 NLRB _1033, at 1034, footnote 3. . .. . . . 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By interrogating employees .about their voting intentions in a forthcoming representation election, and by utilizing an employment form requiring job applicants to disclose their union affiliation, the Respondent violated Section 8 (a) (1) of the Act. ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Clark Printing Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : '(a) Interrogating employees about their voting. intentions in any representation election or using an employment form requiring job applicants to disclose their union affiliation, in a manner constituting interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organiza- tion, to form labor organizations, to join or assist Amalgamated Lithographers of America, Local No. 25, affiliated with Amalgamated Lithographers of America, or any other labor organization, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right is affected by the pro- visions in Section 8 (a) (3) of the Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of this Act : (a) Post at its plant in Kansas City, Missouri, copies of the attached notice marked "Appendix." a Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Seventeenth Region, in writing, within 10 days from the date of 'this Order, what steps the Respondent has taken to comply herewith. ' In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "A Decision and Order" the words "A Decree of the United States Court of Appeals, Enforcing an Order." CLARK PRINTING COMPANY, INC. 125 [The Board'certified that a majority of the valid votes in the elec- tion in Case No. 17-RC--4050 was not cast for Amalgamated Lithog- raphers of America, Local No. 25, affiliated with Amalgamated Lithog- raphers of America, and that said labor organization is not the exclusive representative of the. employees in the unit found appropriate.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate employees about their voting inten- tions in any representation election or use an employment form requiring job applicants to disclose their union affiliation in a manner constituting interference, restraint, or coercion in viola- tion of Section 8 (a) (1) of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Amal- gamated Lithographers of America, Local No. 25, affiliated with Amalgamated Lithographers of America, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities, except to the extent that such right may be affected by Section 8(a) (3) of the Act, as amended. CLARK PRINTING COMPANY, INC., Employer. Dated-------- -------- By------------------------------------- (Representative ) - (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office,.1200 Rialto Building, 906 'Grand Avenue, Kansas City, Mis- souri, Telephone No. Baltimore 1-7000, Extension-731, if they have any question concerning this notice or compliance with its provisions. -INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. Section 151, et seq., herein called the Act. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 19, 1963, the Amalgamated Lithographers of America, Local No. 25, affiliated with Amalgamated Lithographers of America, herein called the Union or Local 25, filed a charge against Clark Printing Company, Inc., herein called either the Respondent or the Company. On May 8, 1963, the General Counsel of the National Labor Relations Board, by the Regional Director' for the Seventeenth Region, issued a complaint and notice of hearing, the complaint alleging that the Respondent during-stated times has engaged in and is engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. On May 15, 1963, the Respondent filed a motion for More Definite Statement. Thereafter on May 21, 1963, the General Counsel filed a motion in opposition to the Respondent's motion for More Definite Statement. Thereafter the Regional Director for the Seventeenth Region issued his Order Referring the Motion to the Trial Examiner for disposition. Said motion was referred to Trial Examiner Jerry B. Stone, who issued his Order Denying Motion for More Definite Statement on May 24, 1963. In the interim counsel for the Respondent filed a motion for Additional Time To Answer which was granted by the Regional Director on May 21, 1963. In due course the Respondent filed its answer on May 28, 1963, in which it admitted certain jurisdictional allega- tions in the complaint, but denied that it had engaged in any of the alleged unfair labor practices, and by way of "confession and avoidance," admitted that it had laid off and finally discharged Richard Tierney "because of economic reasons," of which more below. Prior to the filing of the charge and the issuance of the complaint herein, the Union and the Company entered into a Stipulation for Certification Upon Consent Election in Case No. 17-RC-4050 which was approved by the Regional Director on February 18, 1963. Thereafter on March 19, 1963, an election was held.' The outcome of the election is best stated in the following quote from the Regional Director's Report on Challenged Ballot and Recommendation to the Board regard- ing Case No. 17-RC-4050, dated April 30, 1963. REGIONAL DIRECTOR'S REPORT ON CHALLENGED BALLOT AND RECOMMENDATION Pursuant to a Stipulation for Certification Upon Consent Election, entered into by the parties and approved by the Regional Director for this region on February 18, 1963, an election by secret ballot was conducted pursuant to paragraph 1 of the Stipulation on March 19, 1963. The tally of ballots, issued and served upon the, parties.at the conclusion of the election and on the same day, showed that three votes were cast for the Petitioner and three against it, and that there was one challenged ballot. Thus, the challenged ballot affects the results of the election. The ballot in question is that of Richard Tierney. It was challenged by the Employer for the reason that'Tierney's name was not on the eligibility list and that his services were terminated prior to the election. Pursuant to paragraph 6 of the Stipulation, I report as follows: On March 19, 1963, and after the election had taken place, the Petitioner filed with this regional office a charge against the Employer alleging, inter alia, that Tierney had been discriminatorily discharged on or about February 27, 1963; Case No. 17-CA-2138. Following investigation of the said charge, I have determined that a complaint should issue alleging that the, Employer did, in fact, discriminatorily discharge the said Tierney. Such a complaint will issue in the near future. Since Tierney's eligibility will be determined by the outcome of the charge matter, I make the following RECOMMENDATION 1. That the Board direct-a hearing on the eligibility status of Richard Tierney. 2. That the Board authorize the Regional 'Director for the Seventeenth Region to consolidate said hearing with the hearing on the complaint to.be issued in Case No. 17- CA-2138. ' HUGH E.' Sra u y, Regional Director for the 17th Region. Dated: April 30, 1963, at Kansas City, Missouri. Thereafter on May 15, 1963, the Board 'issued its Order Directing Hearing in Case No. 17-RC-4050. Pursuant to the Board's Order the Regional Director for .:'The same date that the charge herein was filed, of which more below. CLARK PRINTING COMPANY, INC. 127 the Seventeenth Region issued his Order Consolidating Cases and Notice of Hearing, in the matter at hand, on May 17, 1963. In his order the Regional Director stated that: _ IT IS HEREBY ORDERED pursuant to Section 102.33 of the National Labor Relations Board' s Rules and Regulations, Series 8, as amended, that these cases be, and they hereby are, consolidated for the purpose of hearing ruling, and decision by a Trial Examiner, and that thereafter Case No. 17-RC050 be transferred to and continued before the Board in Washington, D.C., and that the provisions of Sections 102.46 and 102.69(e) of the above mentioned Rules shall govern the filing of exceptions. Further, YOU, ARE HEREBY NOTIFIED that the hearings directed by -the Board in. Case No. 17-RC-4050 will be held simultaneously with the hearing in Case No. 17-CA-2138 already scheduled for July 9, 1963, at 10:00 a.m. (CST), at Room 1200, Rialto Building, 906 Grand Avenue, Kansas City, Missouri, at which time and place you will have the right to appear in person, or otherwise, and give testimony. As indicated above the Respondent, in due course, filed its answer to the com- plaint on May 28, 1963. Pursuant to notice, the combined cases came on for hearing before Trial Ex- aminer James A. Shaw in Kansas City, Missouri, on July 9, 1963. At the hearing herein all parties were afforded full opportunity to examine and cross-examine witn6ses,2 to argue orally, and to submit briefs after the close of the hearing in support of their respective positions . On or about July 29, 1963, the General Counsel and the Respondent filed briefs with the Trial Examiner, which he has carefully considered in the light of .the record herein as a whole. On or about July 29, 1963, counsel for the Respondent filed with the Trial Examiner a motion to correct transcript: 'Thereafter on August 1, 1963, the General Counsel filed a response to Respondent's motion to correct transcript, in which he stated that he had no objections to the Respondent's motion, except as to corrections 2 and 6. Since the Respondent's motion as regards these two corrections obviously goes far beyond typographical errors, the Trial Examiner feels they should be set forth herein; consequently they follow below: 2. Page 137, lines . 1 and 2, change "Have you interrogated or questioned Tierney relative to his union activities?" to read "Have you interrogated or questioned Small relative to his union activities." 6. Page 151, line 21, change "... we need. not talk about now and if we ." to read "... we needed to talk about it now and which we wanted to talk about." In support of correction 2, counsel for the Respondent submitted an affidavit of the witness Schartzer. The General Counsel's objection to the foregoing is best stated in the following excerpt from his response to the Respondent's motion to correct transcript. Comes now Counsel for the General Counsel and, in response to Respondent's Motion To Correct Transcript, states that, with the exception of corrections Nos. 2 and 6, he has no objection- to the corrections requested by counsel for Respondent since they appear to be simply typographical errors and mistakes in transcription that do not materially or substantially change the record. In reference to Respondent's requested corrections No. 2 and No. 6, however,' it is obvious that these corrections. go beyond the scope of ordinary record cor- rections in that they do materially change the record herein and are, therefore, opposed by Counsel for the General Counsel. In this respect, it should be pointed out that Schartzer's affidavit attached to the motion is clearly self- serving and does not deserve any long comment. To this extent, the-request on the part of Respondent to change the record after the hearing has been closed should, therefore, be denied. ' ' WHEREFORE, Counsel for the General Counsel urges that the Trial Ex- aminer deny Respondent's motion as to items numbered 2 and 6. 2 Though ' the Union was the Petitioner in -Case' No. 17-RC-4050, it did not choose :to participate in the litigation of the issues pertinent thereto at the hearing herein., 744-670-65-vol. 146-10; 128 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD After careful consideration the Trial Examiner hereby grants the Respondent's motion to correct transcript, except as to corrections 2 and 6; regarding. these proposed corrections, the Trial Examiner is in complete agreement with the General Counsel. As he sees it the Respondent's proposals not only go far beyond mere typographical errors, but to what are unquestionably pertinent issues herein. In such circumstances the position of the General Counsel is not only logical, but well taken and under- standable. To grant the Respondent's motion as to these particular corrections would, in the long run, reduce proceedings before the Board to a battle of affidavits, which clearly was not the intent of Congress, as is well evidenced by even a cursory glance at Section 10 of the Act? Upon the entire record, including consideration of briefs filed by the parties, the Trial Examiner hereby makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleges, and the answer admits , that : "( a) At all times material herein, the Respondent , a Missouri corporation, has maintained its office and principal place of business at Kansas City, Missouri, where it has been, and currently is, en, gaged in the printing and lithography business ; (b) In the course and conduct of its business operations, the Respondent annually sells products and renders services valued in excess of $25,000 directly to customers in States of the United States ,.other than the State of Missouri ; (c) In the course and conduct of its business operations, the Respondent annually sells products and renders services valued in excess of $50,000, to customers located in States of the United States other than the State of Missouri." In the circumstances the Trial Examiner finds that the Respondent is, and at all times material herein has been , an employer engaged in commerce within the meaning of Section 2(6) and 2 (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Lithographers of America, Local No. 25, affiliated with Amal- gamated Lithographers of America, is a labor organization within the meaning of Section- 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The alleged violations of Section. 8(a) (3) and (1) of the Act No proper understanding of the issues herein could be had without a picture of the Respondent's business operations at times material herein. The Respondent's business is confined to "offset printing" of catalogues, brochures, and advertising matter .4 In order to carry on its business operations it owns and operates offset printing presses. In addition it has "a small bindery and plate-making facilities, and a typing department ... consisting of one girl and some typewriters." 5 The Respondent had a complement of around 24 employees in 1961, which for reasons that will be apparent below was reduced to 15 in February 1963. Insofar as the issues herein are concerned we are primarily interested in the printing department and the equipment used in printing the Respondent's ultimate product. The record shows that at times material herein the Respondent had four presses in its pressroom. They are referred to in the record as follows:. the 29-inch Miehle, the 17 by 22 and 36-inch Harrises, and the 15-inch Chief. Insofar as we are concerned herein, the Miehle and the Harris presses play an important role as will be shown below. The most important issue herein is whether or not the Respondent discharged Richard Tierney because of his activities on behalf of the Union., The Respondent contends that Tierney was laid off and/or discharged for economic reasons. In the main the issues as to Tierney center around the Respondent's decision to sell its 36- inch Harris press, which led up to its discharge of Tierney. There is another- issue ' The Respondent's motion to correct transcript and its attachments and the General Counsel's response to Respondent's motion to correct transcript are hereby received in evidence and' made a part of the record herein 'as Trial Examiner's Exhibits Nos. 1 and 2, respectively. - ' ' According to the dictionary, offset printing "is a process by -which an inked impression Is made on a rubber covered roller and then transferred to paper." s Quotes from the credible testimony of Carl Clark, Jr. CLARE PRINTING COMPANY, INC. 129 and that is, whether or not an employer has a right to manage his own business in his efforts to operate it. economically, or is he required to turn this prerogative over to one of his employees, such as Tierney, who had publicly and privately abused the individual whom the Employer had selected as the supervisor of the department where the employee worked? Suffice it to say that the answer to this question is found in the testimony of Tierney himself, both on direct and cross-examination. After long and careful consideration the Trial Examiner is convinced that in the final analysis, we are concerned with. a case that is not only enigmatic, a riddle so to speak, but which, quite frankly, could well be.dubbed "Tierney vs. Schartzer," as will be ,obvious .6 Richard Tierney was employed by the Respondent as a press operator in October 1961. At the time he was hired he filled out an application form which all applicants for jobs were required to do. One of the questions on the application form con- ,cerned his membership in the Union; it was under the general heading "EXPERI- ENCE RECORD," and was as follows, "Union Affiliation ____________________." He answered the question and entered the name of the Charging Union herein? Tierney was hired to operate the 36-inch Harris press. At the time he had had around 9 years' experience as a pressman and was a qualified journeyman operator. In filling out his application form he did not mention the Miehle press as one of those which he had operated before he went to work for the Respondent. Accord- ing to his own testimony he had had very little experience on the Miehle press, and that was for a 2-week period several years before he went to work for the Respondent.8 At the time Tierney was hired, Lloyd D. Warden was superintendent of the department. According to Warden's credible testimony Tierney was hired to run the 36-inch press. He further testified that Tierney told him on several occasions that he had no desire to operate the Miehle press. Since the record herein clearly shows that the Miehle press plays an important role in the disposition of the issues herein, the Trial Examiner feels that the following excerpt from Warden's testimony as to Tierney's attitude toward the Miehle press should be inserted herein. Conse- quently it follows below: Q. While Tierney was under your supervision, did you have several con- versations with him relative to his desire to .run or learn the operation of the Miehle Press? A. Yes. -Q. And approximately when did you have these conversations? A. Do you mean-I'm sorry. What time of the day or- Q. [Interrupting.] No, the year or month if you can fix it. A. I can't pick the month out.... It was in '62, the year of '62. Q. And this is at the time you were plant superintendent? A. Well, the early part^of '62 and possibly in the latter part of '61. But I can't be for sure. Q. Did you have more than one conversation with him? A. Yes. - Q. You had several? A. Yes, I would say several. 6 According to Webster's New Collegiate Dictionary, a riddle is ". .. An .enigma pro- pounded for solution by guessing . .. . 11 So is it here. 4 See General Counsel's Exhibit No. 2. 8 At this point the Trial Examiner desires to point out that his findings and conclusions herein have been made in the light of his observation of the conduct and deportment at the hearing herein of all the persons who testified therein, and after a. very careful scrutiny of the entire record, oral and documentary, all of which has been read and re- read and rechecked several times, and being well aware of the contentions of the parties with respect to the credibility problems here involved, particularly in the light of the controversy as to the alleged errors in the transcript of the record taken at the hearing herein, and the documentary evidence in support of the Respondent's defense-in chief which, when coupled with the fact that it would unnecessarily protract this report to summarize all the testimony, oral and documentary, the following is a composite picture of all the factual issues involved and the conclusions herein are based thereon. -The parties may be assured that in 'reaching all resolutions , findings, and conclusions herein by the Trial Examiner, that the record as a -whole has been carefully considered ; relevant cases have been studied ; and each contention advanced by the parties has been carefully weighed and considered , even though not specifically discussed herein. 130 DECISIONS OF\NATIONAL LABOR RELATIONS BOARD Q.,During these conversations, did Tierney tell you what his desires were .relative to learning to operating the Miehle press? A. Well, yes, he was a Harris press man and Miehle is mechanically so much different, he had no desire to learn to operate it. Q. He told you he just didn't have any desire? A. Yes. Yes. Q. Now, during the period that you were superintendent, on occasions did you have mechanical troubles on the Miehle press? A. Yes. Q. During these occasions, did you ask Tierney if he could offer any advice; and assistance in this mechanical trouble? A. Yes. Q. What would he tell you? A. That he didn't know anything about it mechanically. At the time Tierney was hired Howard Schnitz was operating the Miehle press,. which he continued to do until sometime in September 1962, when he was replacedr by Schartzer. As indicated above, Tierney, though assigned to the 36-inch press. when he was hired, alternated with Schnitz in operating the 17- by 22-inch Harris• when there was work to be done on it. During the period that Warden was superintendent the employees who were under his jurisdiction were permitted to go home when there was no work for the presses. In April 1962; Warden was transferred to the sales department under the follow- ing circumstances. Since his testimony in this regard goes right to the heart of the Respondent's defense as to Tierney, the Trial Examiner feels that the, following excerpt from his testimony should be inserted herein. Q. How did this change come about? A.. Well, it was in the early part of 1962, business was pretty bad. I had an assistant at the time. 'This assistant and myself went to both of Mr. Clarks and said that it was pretty obvious that the company couldn't afford both of us, the way business was at the time, and it was just the handwriting on the wall, that something was going to have to be done. So•I asked, volunteered to. try to see if I could sell. And that's what happened. Q. So that you became a salesman and your assistant became the plant superintendent? A. Yes. Q. Have you had' any discussions with officers of the company relative to discontinuance of the 36-inch press? A. Yes, sir, I have had. Q. When did these discussions take place? A. I would say, oh, a couple of months after I started to work there, which was in 1960, or 1961-I mean, I just mentioned it at the time. And then it come more-talked about it much more later. Q. When did the serious discussions start? A. I would say the end of last year. Q. That would be in- A. [Interrupting.] 1962. Q. The end of 1962? A. Yes. Q. And where did you have these discussions?. A. At general meetings, sales meetings, periodically, twice a week, I believe we had them. And talking about business, how business was and all, and what could be done to help to make more money because we were losing money. That's-we brought up getting rid of the 36-inch press at the time because we weren't keeping it busy. . Q. And this was the consensus of opinion, to get rid of the 36-inch press? A. Yes. Q. And this was back in November and December of '62? A. Yes, I believe so. • The primary purpose of inserting the'foregoing excerpt from Warden's testimony is that it shows the Respondent was gravely concerned about the 36-inch press long before Tierney was discharged on February 22; 1963. Another reason is that it is indicative of the reasons advanced by Tierney in his testimony that led to the em- ployees joining the Union in January 1963, which was to the, effect that there had been several employees laid off, by the Respondent, and they decided that it would' ' CLARK PRINTING COMPANY, INC. 131 (be beneficial to them to join the Union. In other words it is part of the background, .and shows that the employees themselves were well aware of the Respondent's pre- carious financial condition at times material herein. Since we are concerned with a small business it is reasonable to infer from the foregoing excerpt from Warden's -credible testimony, and that of other witnesses who testified at the hearing herein, that not only Tierney but all of the employees were well aware of the Respondent's .financial condition at all times material herein, and had been long before Schartzer was promoted to supervisor over the pressroom on or about January 10, 1963. According to Tierney, he and the other employees in the pressroom were permitted to.go home when. there was no work in the pressroom while Warden was plant superintendent, but this policy changed, and they were assigned to other departments such as the bindery after Bastin took over Warden's job. Tierney and the other employees were guaranteed 35 hours per week, and their weekly pay was predicated on this basis whether they worked or not. So when Bastin and Schartzer who suc- ceeded him tried to find other work for them in the plant some of the employees resented it, particularly Tierney.9 His testimony was to the effect that the employees resented the Respondent's change in policy. One of the most important incidents that we are concerned with herein occurred ,on September 12, 1962, when Fred W. Schartzer was hired to replace Howard Schnitz on the 29-inch Miehle press. At the time Schartzer was employed by the Respondent he was a member of Local No. 16 of the Printing Pressman's Union, and retained his membership therein at =all times material herein,io We now come to Tierney's testimony regarding Schartzer. Quite frankly it has perturbed the Trial Examiner no end, not only as to what he said about Schartzer, but his demeanor at the time he was interrogated by counsel. Here as in similar situa- tions the best account of what transpired at a certain time and/or what was said by those involved in the incident is best told in the language of the witnesses themselves. According to Tierney he was called into Carl Clark, Jr.'s, office shortly before "Schartzer was promoted to foreman of the pressroom; and advised of the Respond- ent's decision. As to what transpired at the time, let us first take a look at Tierney's ,testimony on direct examination. Q. (By Mr. BLAKE.) Calling your attention, Mr. Tierney, specifically to Janu- ary, or approximately January the 10th, 1963, would you tell us what happened on that day? A. I think Fred Schartzer was made foreman around that time. Q. I see. And did you have any conversation with anybody about his being- made foreman that day? A. Yes. Carl Clark, Junior, called mein his office. Q. And what was the conversation? . A. Right before he was made foreman. And told me he was going to make Fred Schartzer foreman. And Carl had heard that I was going to quit when they made Fred Schartzer foreman, and I told him yes, that was-true. And he asked me, he says-we was running a Stewart Hall job four-color process, two sides-and he asked me if I was going to leave him in the middle of that job, and I said no, as long as he would handle it. [Emphasis supplied.] Q. When you say he, you are referring to? A. Carl Clark, Junior. . Q. I see. A. That I would not work with Fred Schartzer in any way. And Carl said, no, this job was between him and I and we would finish it that way. . Q. I see. Now, again, that was the day, or probably the day, Mr. Schartzer was made superintendent, is that correct? A. Yes, around there. " His testimony on cross-examination regarding the above incident, though similar to that on direct, is couched in language much more expressive, which when con- sidered in the light of his demeanor while testifying as to Schartzer is, to the Trial Examiner at least , of considerable importance' and quite frankly a persuasive factor in his ultimate disposition of the General Counsel's case as to Tierney. For this 9 This finding is predicated,on Tierney's overall testimony and the fact that he was the only witness for the General Counsel who testified in this regard. 30 He testified that he resigned.from the Union about 2 months before'the hearing herein, which was on. or about May 9, 1963. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and obvious reasons, the following excerpt from his testimony on cross-examination is likewise inserted herein below: Q. Now, at the time that Fred Schartzer was made plant foreman, you stated that you had some conversation with Carl Clark, Junior, about this appointment? A. Yes. Q. You told Carl Clark, Junior, that you were going to quit? A. Yes. Q. What was the problem between you and Fred Schartzer? A. There was a half a dozen problems between Fred and I. We never got along from the day we walked in there. [Emphasis supplied.] Q. More specifically, what was the matter? A. He come-which isn't done-come over and pulled out a sheet of paper when my press was running, took a look at it, which was no business of his whatsoever. And he also had some comment. He was-I can only-I have no proof of this, but half of the employees or more have told me that all he was was trouble. He gave them trouble. He gave-he was a troublemaker, as far as I was concerned. Q. In other words, you are saying in so many words you just didn't like Fred Schartzer? A. I told Carl what I thought of him, sir. TRIAL EXAMINER SHAW: Told what? The WITNESS: Told Carl what I thought of him. TRIAL EXAMINER SHAW: When did you do that? The WITNESS: When he called me into his office and told me he was going to make him foreman. TRIAL EXAMINER SHAW: What did you tell him you thought of Fred Schartzer? The WITNESS: I said I thought he was chicken shit. TRIAL EXAMINER SHAW: What date was that again? The WITNESS: That was around February the Will, when Fred was made foreman. Q. (By Mr. ENGLE.) That was January the 10th? A. January the 10th. Mr. BLAKE: January. When Schartzer assumed his duties as supervisor over the pressroom there were two operators, Tierney and Jack Small. According to Tierney, Schartzer told them that he was to operate the 36-inch press and Small the 29-inch Miehle, and that the 17- by 22-inch Harris press was to be operated by either of them when there was no work on their regularly assigned presses, or on the "job that was most important" at the time. Small was assigned to the Miehle press at the time Schartzer assumed his duties as foreman on a temporary or trial basis. He was later replaced by one Warrell, a pressman who had had previous experience on Miehle presses. - A few days after Schartzer assumed his duties as foreman over the pressroom, Tierney took several of the employees to the union hall where they signed applica- tion-for-membership cards. Who these employees were, and their job assignments, is none too clear in the record. As a matter of fact the record herein contains no evidence as to what constituted the appropriate unit in the representation case. The sole purpose of the above reference to the unit involved in the representation pro- ceeding is to show the extent of Tierney's union activities at times material herein. On or about January 25, 1963, the Respondent received a notice from the Board's Regional Office that the Union herein had filed a petition for an election, Case No. 17-RC-4050. What transpired after the "R" petition -was filed will be discussed in more detail below. As indicated above, the Respondent's major defense to the charges herein as to Tierney is that he was laid off and/or discharged because of its decision to sell its 36-inch press which the record clearly shows was one of the major causes of its economic plight. The Respondent received a letter dated January 25, 1963, from its auditor," William J. Troupe, in which he recommended that it sell the 36-inch press." - On February 8, 1963, Tierney was discharged by Carl Clark, Jr., under the follow- ing circumstances. According to Tierney, Carl Clark,. Jr., called him into the office and told him the Company was losing money on the,36-inch press, and that, his "The Respondent received the letter on Monday morning, January 28, 1963. CLARK PRINTING COMPANY, INC. 133 services were no longer needed. He was discharged and given a week's severance pay. A few days later, February 13, 1963, he was recalled to work by the Re- spondent under circumstances that will be discussed below. Neil Barnard, Tierney's assistant on the 36-inch, press, was also laid off and/or discharged on February 8, 1963.. Both he and Tierney were recalled to work on February 13, 1963. According to the credible testimony of Carl Clark, Jr., Tierney and Barnard were laid off on February 8, 1963, for economic reasons and in accordance with a. decision the Respondent had made as to the discontinuance of the 36-inch Harris press several weeks before the Union entered the picture. Since this matter is part and parcel of the Respondent's defense-in-chief to the charges herein, the Trial Examiner will discuss it in more detail below. The record is replete with testimony in this regard which, in the main, is supported by documentary evidence that was admitted in evidence by the Trial Examiner at the hearing herein. Quite frankly it has been the assaying of the latter that has caused the Triad Examiner consider- able concern and delay in disposing of the issues herein. We now come to what the Trial Examiner considers a most important incident. He has reference to the fact that on February 13, 1963, the Respondent notified Tierney and Barnard by telegrams to return to work on February 15, 1963. What transpired thereafter will be discussed below. Tierney and Barnard were called back to work for two reasons, one of which was an order the Respondent had received from one of its customers for a rerun of a job, and the second was that it had a good chance of securing a new job for printing certain items for a suburban paper, both of which would have been printed on the 36-inch Harris press. That the Respondent was sincere in its efforts to put Tierney and Barnard back to work on the 36-inch Harris is found in the credible testimony of Carl Clark, Jr. According to Clark, Junior, he issued instructions to Mrs. Clark, the Respondent's bookkeeper, on February 8, 1963, to place an advertisement in "five different news- papers, Des Moines, Wichita, and so forth, and put. an ad in those newspapers and advertise the press for sale." 12 The "advertisement" was mailed out to the news- papers on February 10, 1963. According to Clark, Junior, shortly after the Respondent had inserted its advertise- ment in the papers for the sale of the 36-inch Harris press, he received a message from one Tom Leathers, an old school friend, to the effect that he would like to discuss the possibility of the Respondent printing certain publications for him, namely two suburban newspapers, the "Village Squire" and the "Country Squire." The main reason for Leathers' message to Clark was that he desired to change the printing of his publications to offset which as indicated was the Respondent's specialty. Moreover, if the Respondent was able to secure this work from Leathers, it would help solve its problems with the 36-inch Harris press. The net result of Clark's conversation with Leathers was that the Respondent had ' a good chance of getting the job but before any final decision could be reached Clark wanted time to investigate the requirements of the job, such as costs, bindery, and the like. The foregoing sums up the position of the Respondent insofar as the Leathers publications are concerned as of the close of business February 12, 1963. On the same date, however, the Respondent also received an unexpected order from Guaranteed Foods fora rerun of a job it had done before it shut down the 36-inch press on February 8, 1963. As a result of the Leather interview and the rerun order from Guaranteed Foods, Clark, Junior, instructed Mrs. Clark, the bookkeeper, to cancel the newspaper advertisements and to wire Tierney and Barnard to return to work at'once. Here, at long last, according to Clark, Junior, the Company had found the answer to its problems, but unfortunately as ofttimes happens to many of us our plans go askew, or as Burns put it in "To a Mouse": "The best laid schemes o' 'mice and men Gang aft a-gley; ' An' lea's us naught but grief and pain, -For promised joy." 11 22 Quotes from Carl Clark, Ir.'s, credible testimony. The press referred to is the, 36-inch Rarrls 'pre`ss that ' Tierney and Barnard had been working on at the time they were laid off, on February 8, 1963. .: . 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD So was it here insofar as the printing of the "Village Squire" and the "Country Squire" are concerned, as is well evidenced in the following excerpt from Carl Clark, Jr.'s credible testimony. Q. Now, after you had called Barnard and Tierney back to work and had taken the press off the market on February 13th, 1963, did you begin to work out the production details on the Leathers publication? A. Yes, I did. Q. And on February 13th, did you reach a conclusion- A. [Interrupting.] Yes. Q. (Continuing.) As to the production details? A. Yes. Q. What was your conclusion? A. Conclusion was, it was possible to print it on that press, but there was no way in the world you could bind the job within the time element the man had to have his publication bound. In other words, you had to produce the whole job in three days and while I could produce it on the press by working around the clock for a day and a half, there was no way in the world I could get my bindery or buy any equipment without having it specially built to bind this job. So the Leathers job just wouldn't fit. Q. So the Leathers job just wouldn't fit your plant?. A. That's right. Q. What effect, if any, did your discovery as to the Leathers job have on your decision relative to the 36-inch press? A. Left it right back where I was before. As indicated in the above excerpt from Clark's testimony the Respondent was "right back where it started from" when it laid off Tierney and Barnard on Febru- ary 8, 1963, insofar as its problems regarding the 36-inch Harris press are concerned. That the Respondent at this stage , of its operations was gravely concerned as to what might flow from its decision to discontinue the 36-inch Harris press is found in the testimony of Clark, Junior, and its attorney, Earle J. Engle . The gist of their uncontradicted , undenied, and credible testimony in this regard is to the effect that Clark, Junior, requested Engle to contact Frank Carl , the Union's rep- resentative at all times material herein , and discuss the problems that the Re- spondent was faced with regarding its operation of the 36-inch Harris press. Engle met with Carl on at least two occasions , February 13 and 15, 1963, and on each occasion tried to discuss with him the Respondent 's problems but Carl refused to even talk to him about it. Carl's reasons for refusing to discuss the matter were that there was an election in the offing, and that he had been instructed by the International Union to ignore the Respondent 's request .13 The only thing that Carl said in the course of his conversation with Engle was to the effect that if the Respondent was having trouble with its 36 -inch Harris press, it .should sell it. The rerun job lasted 4 or 5 days. When it was completed the Respondent, after long and careful consideration, decided to -go ahead with its plan to sell. the 36-inch Harris press. Having , reached this decision it again advertised the' press for sale in various newspapers in the 'area. It was eventually sold on May 10, 1963 , to the Fichey Printing Company in Cincinnati, Ohio. When the rerun job was completed the Respondent again laid off and/or dis- charged Richard Tierney on February 22, 1963. A few days later he got a job with the Yearbook House, a lithograph company in Kansas City, Missouri. Barnard, who was called back to work at the time Tierney was on February 13, 1963, was not laid off when the rerun job was completed' but was retained by the Respondent to run the 15-inch Chief .press and other jobs in - and around the pressroom. Since, in the final analysis, one of the General . Counsel's principal contentions as to Tierney is that he should have been given the .29-inch Miehle press to operate, pnd that the pressman, Warrell, who had been hired to do so (after Tierney and Barnard were laid off on February 8, 1963 ), be either assigned to other work or laid off and that the Respondent's failure to do so was for discriminatory reasons and hence violative of Section 8(a)(3) and (1-) of the Act. In the circumstances the Trial Examiner feels that he should at this - point insert the following excerpt 13 Carl entered an appearance at the hearing herein and. was present at ,the time. both Engle and Clark Junior testified. Even so he did not choose to.testify at the hearing. Consequently their testimony in this regard stands uncontradicted and undenied in the record and is fully credited by the Trial Examiner. CLARK PRINTING COMPANY, INC. 135. from the testimony of Carl Clark, Jr.', which clearly shows that Tierney's attitude toward the 29-inch Miehle press was as well known not only to his coworkers, in- cluding Schartzer, but to Carl Clark, Jr., as well, at all times material herein: 14 Q. April 1962, did you have any conversation with Tierney relative to his knowledge on the 29-inch Miehle Press? [Emphasis supplied.] A. Yes. Q. And where was this conversation? A. Howard Schnitz was running the 29-inch Miehle and Chuck Warden, our superintendent, was on vacation. And there was some sort of a problem on the Miehle-I couldn't tell you what it was-some sort of a malfunction, something wrong with the Miehle, and I went over to Rich who was running the 36-inch Harris and I asked him if he knew anything about this Miehle, something was wrong with it, and he said "No, I don't know anything about it." TRIAL EXAMINER SHAW: Pardon me, I don't like to interrupt, but how do, you spell Miehle? The WITNESS: M-e-i-h-l-e-. TRIAL EXAMINER SHAW: M-a-i-h- The WITNESS: l-e. TRIAL EXAMINER SHAW: I have it spelled another way. The WITNESS: It's a German word. TRIAL EXAMINER SHAW: It's all through the record. I thought it was. M-e-a-. Q. (By Mr. ENGLE.) Has Tierney ever expressed any interest to you in oper- ating this 29-inch Miehle? A. No. Q. At the time the 36-inch press was discontinued, did Tierney request con- sideration for the 29-inch Miehle? A. All he said was thanks and left. Q. Now, at the time that you hired Warrell for the 29-inch Miehle, did you give Tierney any consideration? A. Oh, Fred and I talked about it a little bit, putting him on the Miehle, but there was no sense talking about it much because he made it pretty clear he didn't like Miehle and he didn't know anything about it and that's where we put our fancier jobs, and since we weren't going to have the 36 we couldn't take chances, we had to have somebody experienced on the Miehle, so we didn't consider him seriously for five minutes, no. As pointed out above the Union filed its petition for an election in Case No. 17-RC-4050 on or about January 24, 1963. Thereafter on February 18, 1963, the- parties herein executed Stipulation for Certification Upon Consent Election. On, March 19, 1963, pursuant to the foregoing stipulation, an election by secret ballot was conducted under the supervision of the Regional Director for the Seventeenth Region (Kansas City, Missouri). As indicated above, there were approximately six eligible voters and seven ballots were cast, of which three were for the Petitioner and three were against the Petitioner, and one vote was challenged, that of Tierney, who at the time was not on the Respondent's payroll but was then regularly employed by Yearbook House, a lithographing firm in Kansas City, Missouri, as a pressman. After the election was over, the Union filed the charge against the Respondent herein, which is the predicate for the complaint we are concerned with herein. The Re- spondent's defense to the case as to Tierney is as pointed out above, that he was laid off and or discharged for economic reasons. Though the Trial Examiner has made numerous references to its defense-in-chief above, factual and otherwise, it has been primarily for the purpose of presenting a picture, so to speak, as to Tierney's role in the incidents that led up to the issuance of the complaint herein and their impact upon his ultimate disposal .of the case at hand. As the Trial Examiner sees it, the Respondent's case as to Tierney is that when it decided to cease operating the 36-inch Harris press, he "went with the press," so to speak, and his' services were no longer required. As pointed out and discussed above, Tierney was primarily a Harris pressman , and had on many occasions during the course of his employment with the Respondent so informed his supervisors and his coworkers. He had also publicly and privately told them of his dislike for the Miehle press. As a consequence of his statements his idiosyncrasies were well known to Respondent at all times material herein, as is well illustrated in the above excerpt.from Carl' Clark, Jr.'s uncbntradicted and undenied testimony regarding Tierney's attitude towards the Miehle press. 14 The record is none too clear as to just- what a Miehle' press is, except to the extent that It is German made and is used on "fancy printing." - ' 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Now back again to the controversial 36-inch Harris. press, and its role in the issues herein as to Tierney. The Respondent purchased the 36-inch Harris press in 1958 at a cost of around $28,000. It is what is known in the trade as a single-color press. Other Harris presses referred to in the record are styled two-color and four- color presses. The Respondent could print single- or one-color jobs on its 36-inch press, but if it had an order that called' for two different colors on a page, say of a catalogue or some advertising order, it would have to run the sheets back through -the press a second time, while its competitors who had two-color or four-color Harms presses could do the job with one run. Obviously the labor cost on the Respondent's 36-inch Harris would be twice as much as the same job run by ^a competitor on a two-color Harris press. This was the motivating factor behind the Respondent's .decision to get rid of the 36-inch Harris press. Another factor was the fact that sometime in 1961 one of the Respondent's top salesmen left its services and went to work for a competitor and took several of its accounts or customers along with him. In addition it lost two or three of its biggest catalogue accounts in 1961 and 1962 such as the Zeff catalogue, the Kesco catalogue, and the Eads Brothers furniture catalogue. During this same period it also lost an account with the U.S. Corps of Engineers. The net result of its misfortunes was that it suffered a business loss in excess of $20,000 in 1961. At this point the Trial Examiner desires to point out that his findings as to the Respondent's economic problems during the years 1961, 1962, and 1963, and their relevancy to the "36-inch Harris press-Tierney" issue are predicated upon his final interpretation of the credible testimony of the Clarks, and the witnesses Hier, Walker, and Yeo, who testified on its behalf at the hearing herein. His findings are in the final analysis a summation and or interpretation of their testimony and the documentary evidence adduced at the hearing herein in support thereof. It would unnecessarily burden this report to annotate his findings in this regard by referring to each and every document and the testimony adduced regarding the issues herein, both major and minor. As the Trial Examiner sees it no trier of the facts is "com- pelled to annotate to each finding the evidence supporting it." 15 Faced with its 1961 loss of more than $20,000, the Clarks decided to make a thorough investigation of the situation and to find the ways and means to correct it. One of the first things the Respondent did was to lay off some employees, such as the receptionist, girls in the art and bindery departments, a camera operator, and an employee in the plate-making department. At the time the Respondent started to reduce its staff it had about 24 employees, which were eventually cut down to around 15 at the time of the hearing herein. Insofar as we are concerned herein, the major decision of the Respondent at the time, that is the latter part of 1961 and early 1962, was to thoroughly investigate the cost of operating the 36-inch press. As indicated above, Warden, who was plant superintendent at the time, had recom- mended to the Clarks that they sell the 36-inch press and to "farm out" to other printing companies any work that could be done on the 36-inch press, which was common practice in the industry. One of the primary reasons for Warden's • sug- gestion was the fact that from his personal observations, day in and day out, the press was idle about 50 percent of the time. The Respondent, however, decided to try to increase its business on the 36-inch press by starting a campaign for four- -color presswork. What happened to its campaign is best told in the following excerpt from Clark, Junior's, testimony: Well, it started out like 'a house afire and went pretty well, I would say, for two or three months, and then we found out that all was not gold when you get into this fancy work, that competition can usually-do it cheaper with multi-color equipment ... What Clark, Junior, had reference to was the fact that the Respondent could not compete with the two- and four-color presses, as is clearly evidenced in the following excerpt from Clark, Junior's, testimony regarding a conversation he had with "Woody" Walker, a competitor, who owned and operated multicolor presses, as to the printing costs of multicolor work: Q. How did his prices stack up with your prices? A. Pretty simple. I would-say that was the thing that started the ball rolling. He said that he wanted $6.50 per thousand impressions on his two-color press. Now, our basic charge at that time was $4.25 per thousand impressions on our one-color press, which meant that if I had a two-color job I'd have to run it through my press twice, so every thousand impressions would cost $4.25 times See U.B. v. Pierce•Auto Linea, 327 U.S. 515 .; and Trumball Asphalt ,Oo. of Delaware, 314 F. 2d 382, 383 ('C.A. 7), 136 NLRB 1461. - • CLARK PRINTING COMPANY, INC . 137 two, or $8.50, and he would run the same job for $6.50 a thousand,. and the plates cost the same. In addition to Walker, Clark, Junior, talked to several others in the industry :regarding the Respondent's problems. The upshot of the Respondent's investigations -was that it should sell the 36-inch press. This decision was reached in the latter part ,of 1962. However, Clark, Senior, felt that before they sold the press they should have their auditor, William J. Troupe, carefully check the cost of operating the 36-inch press while he was auditing the Respondent's books for the fiscal year, 1962. With this in mind Clark, Senior, sent the following letter to Troupe on December 12, 1962: Mr. WILLIAM J. TROUPE Troupe, Kehoe, Whiteaker & Kent 309 Security Bank Building Kansas City 1, Kansas DECEMBER 12, 1962. DEAR BILL: While I think about it and before you start our audit at the end of the year, we'd like for you to pay particular attention to the operation of our 36" press. According to industry publications, as well as other people in the business, it's practically impossible to make a profit on the operation of this press unless it is run on a two shift basis. We are seriously considering selling it but feel that your opinion should be sought first. Here are the facts. We keep the press busy between fifty percent and sixty percent of the time, which amounts to three and a half to four hours per day. The combined labor cost of the two men running it is $6.36 per hour, plus fringes. You have the figures on depreciation, overhead, maintenance, etc. Our selling price per hour is around $18.00. There's no big hurry but when you finish the audit, I'd appreciate your opinion. Many thanks. Sincerely, CWC:sr/lm CLARK -PRINTING COMPANY, INC., C. W. CLARK, Sr., Chairman of the Board. On January 25, 1963, Troupe sent the following letter to the Respondent, which it received on Monday, January 28, 1963.16 Mr. CARL W. CLARK, Sr. President Clark Printing Company 301 West 17 Street Kansas City, Missouri JANUARY 25, 1963. DEAR CARL: Sorry it has taken this long to answer your letter about your press operation, but this is a busy time of the year. As I see this situation, if we use round figures of 150 hours per month, possible production (7 hours per day plus 21 days per month) your picture is this: $6.36 per•hour,plus 150 hours/month---- $ 954. 00 direct wages/month. $30,000 investment over 10 years------- $ 250. 00 depreciation/month.' Total____________________________ $1,104.00 cost/month. 50% of 150 hours-75 hours plus $15.00_ $1, 125.00 selling price/month. 60% of 150 hours-90 hours plus $15.00_ $1,350.00 selling price/month. Obviously, this ' is not- profitable at these percentages. We have shown before that you. must get approximately three times your direct labor cost to cover overhead; fringes; maintenance, etc. Even if you got,.100% production of 150 hours/month, you would not reach the "three times" ratio. I would say that unless you can sell' enough work to bill around $3,000.00/month from this press, that. you can't afford to operate it. Sell it and reduce your bank loan. I hope this information-is Sincerely yours, WJT: am what you- wanted. If not, give me a call. TROUPE, KEHOE, WHITEAKER & KENT, (S). William J. Troupe, WILLIAM J. TROUPE. is See supra. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A major factor in the Respondent's decision to dispose of its 36-inch Harris press was the fact that it operated only 56 percent of the time. As a result the pressmen- assigned to operate it, Tierney and his assistant in this case, were working as such only 56 percent of the time, though they were being paid for 35 hours a week whether the press was in operation or not. To be sure there were times when Tierney worked on the 17 by 22,inch Harris press, but his own testimony clearly shows that on many occasions he had nothing to do and when Warden was in charge of the department he would leave the plant and go home. Further evidence that such was the situation is likewise found in Tierney's testimony regarding his resentment towards Bastin and Schartzer because they had the effrontery to assign him and others. similarly situated to other work in the plant during such periods of idleness. More- over, the Trial Examiner is convinced that Schartzer's policy in this regard was a factor in Tierney's efforts to unionize the shop and explains his testimony at the, hearing herein as to why the Union came into the picture about January 15, 1963- because Schartzer "pushed it on, yes." 17 Concluding and Overall Findings as to the Alleged Violations of Section 8(a) (3 ) of the Act After long and careful consideration of the case as to Richard Tierney, the Triat Examiner is convinced and finds that the General Counsel has failed to prove by a, preponderance of the evidence that the Respondent herein engaged in conduct violative of Section 8(a)(3) and (1) of the Act. Quite frankly, what we are actually faced with herein is pure speculation, particularly as to the General Coun- sel's contention that Tierney should have been assigned to the 29-inch Miehle press and that Warrell, who had been hired a few days before Barnard and Tierney were recalled to work on February 13, 1963, as the operator of the Miehle press, should have been either laid off or assigned elsewhere to make room for Tierney. The record herein does not support his contention in this regard, for the following reasons. As the Trial Examiner sees it here we have an employee, Richard Tierney, who had publicly expressed his dislike for his immediate superior, Fred W. Schartzer, in no uncertain language, not only to his coworkers but to one of the major stock- holders ' and officers of the Company, Carl Clark, Jr., before and at the time Schartzer was under consideration for appointment to a supervisory position. In addition he had also repeatedly, throughout his entire tenure 'of employment with the Respondent, stated, not only to his coworkers but his immediate superiors as well, his dislike for the Miehle press and his preference for the 36-inch Harris press. which the record clearly shows was a contributing factor in the Respondent's financial problems at times material herein. In all the circumstances the Trial Examiner is convinced and finds that the Respondent was justified in not only disposing of its 36-inch Harris press, but its operator as well. In other words it was justified in its position that "Tierney went with the 36" Harris press." More- over, it must be borne in mind that its problems with the 36-inch press had been under discussion for months; before the Union entered the picture. In addition the record clearly shows that its financial plight was well known to its employees as is evidenced by the testimony of not only the Clarks but one of its salesmen, Warden, and by the General Counsel's own witnesses, including Tierney, in their testimony as to nonworking hours for which they were paid under the Respondent's prevailing wage policy 'of 35 hours per week for the employees in the pressroom. Insofar as the Respondent's failure and/or refusal to assign Tierney to the 29-inch Miehle, the Trial Examiner of necessity in the final analysis would be. compelled to rely upon sheer speculation and surmise to accept the General Coun- sel's theory, and not on- a preponderance of the reliable and probative evidence adduced at the hearing herein in support of his case-in-chief. Tierney's own testi- mony is, in his opinion, the answer to the General: Counsel's position as to this pestiferous issue.18 Issues similar to that with. which we are faced herein regarding Tierney, where the General Counsel has contended that an alleged discriminatee should have been placed on this machine or put on another job and another employee either moved to another. job or laid off in order. to. make room for the, alleged discriminatee and that the employer's failure to do so was discriminatory and . hence automatically 17 See record at page 37. 18 See Board of Publication of the Methodist Church d/b/a Methodist Publishing House v. N.L.R.B., 297 F. 2d 379 ((j.A. 6), setting aside 129 NLRB 1420-in re reliance upon "speculation and surmise and not on established fact." CLARK PRINTING COMPANY, INC. 139 violative of the Act, have been before the Board and the courts before.19 As indi- cated above, the Trial Examiner is convinced that the only possible way that he could make any findings herein in favor of the General Counsel's case as to Tierney would be by way of suspicion and conjecture. This the Trial Examiner cannot and will not do, since neither suspicion nor conjecture is evidence. In the cir- cumstances discussed, described, and found above, the Trial Examiner is convinced that the following excerpt from a factually similar case, in the United States Court of Appeals for the Fifth Circuit, N.L.R.B. v. T. A. McGahey, Sr., et al., d/b/a Columbus Marble Works, 233 F. 2d 406, 412-413, is pertinent: The Board's error is the frequent one in which the existence of the reasons stated by the employer as the basis for the discharge is evaluated in terms of its reasonableness. If the discharge was excessively harsh, if lesser forms of discipline would have been adequate, if the discharged employee was more, or just as, capable as the one left to do the job, or the like then, the argument runs, the employer must not actually have been motivated by managerial con- ,siderations, and (here a full 180 degree swing is made) the stated reason thus dissipated as pretense, nought remains but antiunion purpose as the explanation. But as we have so often said: management is for management. Neither Board nor Court can second-guess it or give it gentle guidance by over-the-shoulder supervision. Management can discharge for good cause, or bad cause, or no cause at all. It has, as the master of its own business affairs, complete freedom with but one specific, definite qualification: it may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids. In all the circumstances the Trial Examiner will recommend below that the case :as to Richard Tierney be dismissed in its entirety. B. The alleged independent violations of Section 8(a) (1) of thle Act The complaint alleges that Schartzer engaged in certain conduct that was inde- pendently violative of Section 8(a)(1) of the Act. In addition it alleges that the .application for employment form that the Respondent required employees to fill ,contained an "item calling for disclosure of union affiliation," at time material 'herein, that was likewise violative of the Act. In its answer the Respondent specifi- cally denied each and every allegation in this regard. The Trial Examiner will first dispose of the allegations in the complaint that concern Schartzer. The General Counsel in support of his allegations used two witnesses, Jack Lee Small and Neil Barnard. Let us first look at the testimony of Neil Barnard. The record shows that Barnard was hired by the Respondent sometime in June 1962 to operate the Chief 15 offset press. Sometime in September 1962 he was put on the 36-inch Harris press as a "feeder" for Tierney who was the pressman. He remained on this job until Feb- ruary 8, 1963, when he was laid off and or discharged along with Tierney under the circumstances discussed and described at considerable length herein above in that section of this report devoted to the alleged discriminatory discharge of Tierney. Barnard was called back to work along with Tierney on February 13, 1963. The record is none to clear as to just what his job was after he returned to work on February 15, 1963. From what the Trial Examiner is able to glean from the record he was "doing ... just any kind of job, cutting, bindery, shipping, whatever needed to be done and then I went back on the Chief 15 and the multilith." At this point the Trial Examiner desires to point out that Barnard also testified that the 36-inch Harris press was shut down after Tierney was laid off and/or discharged on February 22, 1963, and was never used thereafter.29 According to Barnard's credible testimony he had several conversations with Schartzer about the Union after February 22, 1963; his testimony on direct examina- tion is most interesting, as is evidenced by the excerpt therefrom that follows below: Q. Now, Mr. Barnard, I want to call to your attention a period about a week :after Mr. Tierney's discharge which would be a week after February the 22d, and ask you if you had any conversations with Mr. Schartzer about the union? A. Well, I had several conversations with Schartzer about the Union. Most of them I started. I was-I wanted to talk about it and find out as much about it as I could. And they were just general conversations. Some of the questions were questions that I asked and some were he asked. And he asked questions that I didn't think it was any of his business; I just didn't answer them. 19 See infra. YO. See supra, in re the layoff and/or discharge of Tierney on February 22, 1963. Above quotes are from Barnard's credible testimony. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. What were these questions that he asked you,, Mr. Barnard? A. Well, he asked me once, he just-in our conversation-he wanted to know how I was going to vote, and I just didn't answer him. Q. You didn't answer him. Did he,say anything further to you during these. conversations? A. Well, I' don't know if it was the same conversation. _ Like I said, we had several. And he said that he had some doubt about how I was going to vote,. but since Rich was gone he thought I would vote the right way. TRIAL EXAMINER SHAW: You would what? The WITNESS: He said since he had some idea-he didn't know how I was. going to vote since Richard Tierney was gone, he knew I was going to vote, how I was going to vote. He further testified that the reason he went to Schartzer and asked him about the Union was that he had been "in an another union before I came there and I had a very unhappy experience with it and it was fairly common knowledge that I was. unhappy with the union," and that Schartzer and other employees knew how he felt about the union. His overall testimony was to the effect that he did not consider the remarks of Schartzer as either coercive, threatening, or as a promise of benefits in any way, shape, or form. In addition to admitting that he started all of the conversations with Schartzer except one, he testified in substance that he could not recall who started up the conversation in which Schartzer asked him how he was. going to vote in the coming election, but that in any event the conversation "didn't last very long, because when I didn't answer the question he just didn't say anything else." 21 Schartzer admitted that he talked with Barnard about the Union on several oc- casions but that he did not ask him as to how he was going to vote in the coming election because "it was generally known around the plant how he was going to vote; it was assumed by myself ... because it was a well known rumor around the plant, he had talked to everybody about it and it got back to me, his intentions." 22 From the foregoing it is obvious that the Trial Examiner is faced with a question concerning the credibility of Barnard and Schartzer as to whether or not Schartzer asked Barnard how he was going to vote. Though both witnesses impressed him favorably, he is inclined to credit Barnard's version of the conversation for the reason that Schartzer had a special interest in the outcome of the election that goes back to Tierney's activities on behalf of the Union (which the record clearly shows were well known to the Respondent and its supervisory staff), and his antipathy, toward him as an individual 23 Schartzer, as a person, in such circumstances would consider the union movement and Tierney as "one," and unconsciously would be concerned about the result of the election. In the circumstances it is logical to assume that he did make the inquiry attributed to him by Barnard, and the Trial Examiner so finds. Barnard also testified concerning a conversation he had with Carl W. Clark, Sr., chairman of the board of directors of the Respondent corporation. Since the Trial Examiner considers his testimony in this regard of importance, the following excerpt therefrom follows below: Q. Has any officer or'supervisor of the company made any threats to you? A. No. Q. Have any of them promised you anything if you would vote for or against the union? A. No. Carl, Senior, said to me one day that it didn't make any difference how I went, if I done my work I would have my job. Q. When did he tell you this, approximately? A. I don't know. I don't have a very good memory of days. Q. Wasit before the election? A. Yes, I believe it was before the election. I went in there one morning to get a job okayed and there was kind of a little discussion about it, nothing in particular, just a discussion of the union. Q. And he said it didn't matter how you voted, as long as you did your job, you would have a job? A. Yes. u Quotes from Barnard's testimony on direct examination. 2' Quotes from Schartzer's testimony. zv See supra, in re the abusive language used by Tierney in his conversation with Clark Junior before Sehartzer was promoted to plant superintendent. CLARK PRINTING COMPANY, INC. 141 In disposing of the issue as to Barnard;;the Trial Examiner is convinced that, the above-referred-to conversations with Schartzer, all -but one of which started on his own initiative, had no effect whatsoever upon him in the exercise of his rights under the Act. As a matter of fact, Barnard's interpretation of what Schartzer meant when heasked him how he was going to vote in the coming election was the exact opposite of the General Counsel's contention, as is clearly evidenced in his testimony. where he said, ". . . It meant to me I was going to vote for the Union, and now that Rich was gone he wouldn't be around there to influence me, I would vote the way I thought I ought to." 24 In all the circumstances discussed and described above, the Trial Examiner is convinced and finds that Schartzer's comments to Barnard were meaningless, and in the final analysis mere trivia. Consequently, he will recommend below that the allegation in the complaint in this regard be dismissed. Now as to the allegation in the complaint that concerns Schartzer's statements to Jack Lee Small. According to Small he had a conversation with Schartzer about a month before the election which was held on March 19, 1963. His testimony was as follows: I was running the 17 by 22 Harris at the time. Fred Schartzer, the super- visor, came back and was standing around the press and he asked -me what I thought about the union, Local 25. I gave him no reply. And then he asked me if there was anything I would like to know about Local 25. And I still gave no reply. And then he asked me if there was anything I wanted to know about Local 25, the truth about Local 25, that I should ask some of the previous members that's working there at Clark Printing, and he said there are two or -three of them. And I still gave no reply. And then he says, he asked me which way I was going to vote. And I still gave no reply. So he turned around and walked away. Q. I see. Now, there was nothing further to this conversation, is that correct? A. No, there was not. On cross-examination of Small, counsel for the Respondent endeavored to im- peach his testimony by means of an unsworn pretrial statement, which was signed by him under the following circumstances. On or about March 25, 1963, Small was interrogated by the Respondent's counsel as to the allegations in the charge against the Respondent which had been filed by the Union on March 19, 1963. The interrogation took place in the office of Clark, Senior, in the presence of the Clarks and Schartzer. At the hearing herein Small was queried by counsel for the Re- spondent as to what transpired at that time. From what the Trial Examiner is able to glean from Small's testimony, he told Engle, the Respondent's attorney, and others present including Schartzer, that Schartzer had attempted to talk to him about the Union in the circumstances set forth above. He further testified in substance that at the time he signed it he did so because ". . I assumed this concerned mainly the company itself, Clark, Junior, and Clark, Senior. I didn'•t pay any attention about the other"; and that as far as he. was concerned it "didn't pertain to Mr. Schartzer." 25 The statement in question follows below: JACK L. SMALL No foreman or supervisor of the company or anyone else has made any threats to me about the union. No officer or supervisor of the company or anyone else, has made me any promises if I would vote' against the union. In my opinion no supervisor has interrogated me relative to the union, no officer or supervisor of the company has attempted to make me do anything relative to the union that I did not want to do. JACK LEE SMITH March 25, 1963 Despite the General Counsel's vigorous objection to the admission in evidence of the foregoing statement, the Trial Examiner admitted it for the following reasons. In the first place because Small admitted he signed it, and, secondly, because at the time it was offered he considered it of little or no probative value, and so advised counsel for the Respondent at the time he admitted it in evidence 26 For reasons set forth below, he is still of that opinion, particularly - after considering the docu- ment in question in the light of the record as a whole. 24 By "Rich" Barnard is referring-to Richard Tierney. m Quotes from Small's credible testimony on voir dire examination by the General Counsel, at the time counsel for the Respondent offered the document In question in evi- dence. See transcript of testimony at pages 64, 65, and 66. 20 See Respondent's Exhibit No. B-i. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schartzer was not queried about the conversation referred.to by Small in his. -testi- mony. According to his testimony on both direct and cross-examination, the only, interrogation he was subjected to was in generalities phrased in legalistic language as to whether he made promises of benefits or threats, or interrogated or threatened any employee "relative to union activities," which he denied except in the case of Neil Barnard, which has been discussed and disposed of above. After long and careful consideration the Trial Examiner is convinced and finds that Schartzer made the statements attributed to • him by Small, and credits the latter's testimony in this regard. A compelling factor in the Trial Examiner's finding in this regard is found above in his comment as regards Schartzer's conversation, with Barnard. He honestly feels that Schartzer's conversations with both Small and Barnard were impelled by his troubles with Tierney, which were personal for. reasons discussed at considerable length hereinabove. Moreover, it must be home in mind that the conversation with Small occurred about a month before the election on March 19, 1963, which the Trial Examiner finds would have been around February 16, 1963, at which time Tierney had been recalled to work by the Respondent. Another compelling factor, to the Trial Examiner at least, is the fact that both of. the Clarks and Schartzer himself testified after Small, and were not queried by counsel as to either the meeting with Small that we are concerned with or the circumstances under which the statement in question was taken from Small 27 In the circumstances discussed, described, and found above. the Trial Examiner finds that technically speaking Schartzer's interrogation of Small was violative of Section 8(a)(1) of the Act. As to his final disposition and recommendations as to this particular allegation in the complaint, it, along with others of this nature, will be discussed and disposed of hereiribelow. There yet remains for disposition the allegation in ,the complaint that the Respond- ent "for a period of five years prior to February of 1963, had required certain appli- cants for employment to fill out a questionnaire containing an item calling for disclosure of union affiliation." 28 There is no issue in this regard, since the Respond- ent furnished the General Counsel copies of the applications in question and as indicated stipulated that it had used them for several years. At the same time counsel for the Respondent informed the Trial Examiner that it had discontinued the use of the forms before the charges were filed herein. Here again we are faced with a technical violation of Section 8 (a) (1) of the Act, which under certain circumstances would justify the Trial Examiner's recommending that it cease and desist from such conduct. Whether or not there is justification for his recommending a remedial order as to not only this issue but those that have also been discussed above will be commented upon below. Suffice it to say at this point that his ultimate disposition of not only this particular issue but the entire complaint herein as well has perturbed him no end, and he assures all concerned that he has honestly and conscientiously endeavored to be fair to all parties in accordance with the stated purposes of the Act. With this in mind he disposes of the issues herein- below regarding not only the alleged violations of Section 8(a)(1) but the entire complaint as well. The Trial Examiner has carefully considered the issues herein and as indicated above has been greatly perturbed by the state of the record regarding certain of the issues herein. As he sees it, here we have a case where the record is barren as to any past unfair labor practices by the Employer. In fact, insofar as this record is concerned, the first effort of its employees to engage in concerted activities was after Schartzer, a coworker, was promoted to a supervisory position. The moving character behind this effort was Richard Tierney, who the record clearly indicates was motivated not by his concern over the betterment of the employees' working conditions, but because of his intense hatred of Fred Schartzer, whom he referred to in his testimony at the hearing herein as "chicken shit." Despite the fact that his attitude was well known to the Clarks, they went ahead with their original plan and promoted Schartzer to the job he held at times material herein. As the Trial Examiner sees it, this was their prerogative, and no concern of Tierney or anyone else. Nor was the fact that Schartzer endeavored to correct certain working oondi- rr It should be borne in mind that there is a vast difference between the admissibility of. evidence, either documentary or oral , and U8 a -probative value when considered in the light of the record as a whole. Since this observation of the Trial Examiner is axiomatic he deems it unnecessary to cite cases and authorities such as Wigmore, ad infinitum, in sup- port of his reasoning in this regard. Suffice it to say that he so advised counsel at the time he admitted the statement in evidence. 29 Quotes from stipulation of the Respondent. See General Counsel's Exhibit No. 2. CLARK PRINTING COMPANY, INC. 143 tions in the press department , such as finding other work for the pressmen when their presses were idle, "an unfair labor practice" as indicated by Tierney in his testimony that Schartzer "pushed the union" on the employees in the unit we are concerned with herein. Though the Trial Examiner has disposed 'of the case herein- above as to Tierney, he feels that the foregoing reference to his activities merits repetition in assaying his ultimate findings regarding Schartzer's conduct, which as indicated above, constitute the only alleged violations of Section 8(a)(1) of the Act attributed to "officers and agents" of the Respondent herein. The Board itself in a recent case where the facts were somewhat similar to those we are faced with herein well states the Trial Examiner's ultimate conclusions and findings in his disposition of the case at hand . He has reference to the Board's Decision and Order in the General Electric Company , 143 NLRB 926 . In that case the Board held: Respondent has approximately 600 employees at its Circleville, Ohio, plant. On May 28, 1962, the Union filed a petition seeking to represent production and maintenance employees at this plant . Thereafter the parties entered into a consent election agreement. An election was held on June 28, 1962 , which the, Union lost. During the weeks preceding the election, both the Union and the Respondent conducted vigorous campaigns setting forth their respective posi- tions as to the election. There is no contention that any of this campaigning, except for the acts of interrogation discussed hereinafter, was unlawful. From March to June 1962, four minor supervisors asked four employees some ques- tions about the Union, such as what the employee expected to gain by having a union, and how the Union was getting along. The acts of interrogation were disconnected and appear to have been unplanned . No threats or promises of benefit were made during these interrogations and the background is free of unfair labor practices. Although we believe that the Respondent overstepped the bounds of'permissive lawful action by the interrogation , we do not believe that •the conduct is sufficiently serious when viewed in total context to justify, issuing a remedial order. Accordingly, contrary to the Trial Examiner, we shall dismiss the complaint. [Emphasis supplied.] The Trial Examiner adopts the reasoning of the Board in the case referred to above and is convinced and finds that it is applicable to the case at hand. In the circumstances and upon all of the foregoing , the Trial Examiner will recommend below that the complaint herein be dismissed in its entirety. Case No: 17-RC-4050 Since the Trial Examiner has found above that Richard Tierney was laid off and/or discharged for just cause before the election herein on March 19, 1963, it follows that pursuant to the terms of the election agreement he was ineligible to vote, the Trial Examiner will recommend below that the challenge to his ballot by the Employer be sustained. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, the undersigned makes the following: CONCLUSIONS OF LAW 1. The operations of Respondent, Clark Printing Company, Inc.; occur in, com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Lithographers of America , Local No. 25, affiliated with Amal- gamated Lithographers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Respondent -has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and ( 3) and Section 2 (6) and (7) of the Act by the layoff and/or discharge of Richard Tierney on February •8 and 22 , 1963 , or by any other acts or conduct. 4. The challenge to the ballot of Richard Tierney should be sustained because he was not an employee of the Respondent at the time of the election , pursuant to the terms of the election agreement. _ RECOMMENDED ORDER Upon the basis of the foregoing findings of- fact, conclusions of •law, and upon the entire record in this case, it is recommended that the complaint herein be dismissed in its entirety, and that the challenge to the ballot of Richard Tierney be sustained. 744-670-65-vol. 146-11