Decision, Inc.

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decision, Inc. and Local 8-L, Lithographers and Photoengravers International Union , AFL-CIO) Case 9-CA-3976 June 30, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On March 23, 1967, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that these allegations be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed exceptions to portions of the Decision and a supporting brief. The Charging Party filed an answering brief in support of the General Counsel's exceptions and in opposi- tion to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in the case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner and on July 25, 1966 , respectively, by Local 8-L, Lithog- raphers and Photoengravers International Union, AFL-CIO (herein sometimes called the Charging Party or Union), the General Counsel of the National Labor Relations Board , by the Regional Director of Region 9 (Cincinnati , Ohio), issued his complaint dated August -11, 1966, against Decision , Inc. (herein sometimes called the Respondent , Company, or Employer). Respondent's duly filed answer admitted some of the facts alleged in the aforedescribed complaint but denied other facts and de- nied the commission of unfair labor practices. Pursuant to appropriate notice , a hearing in this matter was held on November 15, 16, 17, and 18 , 1966, before me. All parties were represented at and participated in the hearing, and were afforded the right to present evidence, to examine and cross-examine witnesses , to offer oral ar- guments, and to file briefs. At the hearing the General Counsel was permitted to amend the complaint to include certain additional allegations and the Respondent was permitted to amend his answer to deny such allegations. Briefs were filed by the General Counsel and the Re- spondent and have been considered. The issues in this case may be described as: (1) whether Respondent engaged in interference , restraint, and coercion (of its employees) within the meaning of Section 8 (a)(1) of the Act by various acts such as inter- rogation as to union activities , soliciting of employees to refrain from union activities, threats of reprisals or futility relating to union activity , and promises of benefits to refrain from union activities ; (2) whether the employee unit contended by the General Counsel is the appropriate bargaining unit, and if so, whether the Union is the exclu- sive bargaining representative of such employees, and if so, whether an appropriate demand for bargaining was made, and if so, whether Respondent has refused to bar- gain in good faith with the Union within the meaning of Section 8(a)(5) of the Act; (3) whether Respondent dis- criminatorily laid off four employees on July 1, 1966; and (4) whether a strike commencing on July 6 , 1966, was an unfair labor practice strike. Upon the entire record in this case and from my obser- vation of the witnesses, the following findings of fact, conclusions of law, and recommendations are made.' FINDINGS OF FACT AND CONCLUSIONS OF LAW ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respon- dent, Decision, Inc., Cincinnati, Ohio, its officers, agents, successors, and assigns, shall take the ac- tion set forth in the Recommended Order of the Trial Examiner. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B . STONE , Trial Examiner : Upon a charge and amended charges filed on June 27, 1966, on July 5, 1966, ' All credibility resolutions made herein are based on a composite evaluation of the demeanor of the witnesses and the probabilities of the evidence as a whole 2 The facts set forth at this point are limited to those facts which essen- I. THE BUSINESS OF THE EMPLOYER INVOLVED2 The facts pertaining to the business of the Employer, set forth herewith, are based upon the pleadings and the admissions therein. Decision, Inc., is an Ohio corporation. During a 12-month period ending on August 31, 1966, which is a representative period, Decision, Inc., had a direct out- flow, in interstate commerce, of goods and products valued in excess of $50,000 which were sold and shipped directly from its plant at Cincinnati, Ohio, to points out- side the State of Ohio. As conceded by the Respondent, it is concluded and found that Decision, Inc., is an "employer" as defined in Section 2(2) of the Act, engaged in "commerce" and in operations "affecting commerce" as defined in Section 2(6) and (7) of the Act. pally reveal that the Employer's operations are such that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 166 NLRB No. 41 II. THE LABOR ORGANIZATION INVOLVED DECISION, INC. 465 The complaint alleged that "at all times material herein, the Union is and has been a labor organization as defined in Section 2(5) of the Act." The Respondent's answer de- nied this allegation. A composite of the credited testimony of Nichols and Dourson, and the exhibits in the record, reveals the facts to be as follows. Local 8-L, Lithographers and Photoen- gravers International Union, AFL-CIO, (1) is a labor or- ganization in which employees participate, (2) is an or- ganization affiliated with the AFL-CIO, (3) is an or- ganization involved in representing employees and in dealing with employers for negotiation of contracts with employers covering wages and hours and conditions of employment of employees, and (4) has negotiated con- tracts with employers concerning such wages, hours, and working conditions. I find without merit Respondent's contention that the Union is not a labor organization within the meaning of Section 2(5) of the Act because of alleged noncompliance with the Civil Rights Act of 1964, Title VII, 78 Stat. 241, Sec. 703(c), 42 U.S.C., Sec. 200e-2(c). Assuming such questions to be litigable before the Board, the evidence in the record is clearly insufficient to establish that the Union discriminatorily excludes Negroes or women from membership, or that the Union does not fairly and equally represent all employees in its represented bargaining units. 3 Considering all of the foregoing, it is concluded and found that Local 8-L, Lithographers and Photoengravers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(6) and (7) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Alleged Refusal To Bargain 1. The dispositiv' issue In most cases to determine whether or not a Respond- ent has violated Section 8(a)(5) and (1) of the Act by refusing to bargain with a representative of its employees it is necessary to consider the questions of appropriate demand, appropriate bargaining unit, the majority status of the Union, and a question of the Respondent's good- or bad-faith reaction to the demand. In the instant case the General Counsel contends that his evidence reveals that the Union made appropriate demands on June 22 and 23, 1966, for bargaining in an appropriate unit, and that the Union had designations to represent the em- ployees (numbering 18) on June 22, 1966, and (number- ing 19) on June 23, 1966. The General Counsel contends that the description of the appropriate bargaining unit is: All production and maintenance employees of the Respondent at its plant located at 5809 Madison Road, Cincinnati, Ohio, excluding all office clerical employees, guards, professional employees and su- pervisors as defined in the Act, and that such a unit consisted of 26 employees. The Respondent agrees in effect that the description of the ap- propriate bargaining unit is as contended by the General Counsel. The Respondent contends however that such a unit contains other employees than those contended by the General Counsel and that of such a unit that the Union did not represent a majority of the employees.4 It is the General Counsel's contention that employees (1) who worked on duplicators, folders, and other machines in the backroom of Respondent's plant (such employees being Richard Bailey, James Jackson, Ken- neth Jackson, Winston Jackson, Kenneth Weeks, Charles Gehlert, John Kern, Richard Jones, Edgar Jackson, and Robert Roth), (2) who worked as maintenance or janitori al employees (employee Huwyler), (3) who worked in the backroom and operated graphotype machines (employees Jennie Mae Carter, Donna Spenny, Donna Van Camp, and Charlotte Nelson), (4) who worked in the backroom and cut ads, ran collators, proofed resumes, looked up and listed zip codes, filed metal speedaumat (address) plates, caught mail, and handled direct mailing (em- ployees Mary Jackson, Stephen Gehlert, Bernadine Dow, Juanita Randall, Sandra Meinke, Katherine Baader, Kathy O'Donnell, Rose Cumby, and Grace Haverkamp), and (5) who worked in the frontroom on two varitypewriters (employees Shirley Ball and Shirley Rupert) constitute the appropriate bargaining unit. It is the General Counsel's contention that the Re- spondent has operated on a basis that the employees in the backroom and the varitypewriter operators constitute a "production department." The General Counsel con- tends that the work of the employees in such "production department" is dissimilar work and required dissimilar skills to the duties of the employees in the "front office" who are engaged in the work of maintaining the "Deci- sion Register," in various search and cataloging func- tions, in contact with technical and professional person- nel and with employers, and in typing and filing duties re- lated to the "Decision Register," "Decision Reports," and "Business Register" and related publications and ser- vices. There is no dispute that various persons are excluded from the appropriate bargaining unit because of holding executive and supervisory positions, office clerical posi- tions unrelated to "production work," accounting posi- tions, technical type positions, and work generally unre- lated to production. Such persons are Oliver Bardes (pre- sident), Emil Berdolt, Richard Clemmer, Charles McLean, William Schlaudecker, Clyde Becknell, Emile Hanna, William Hicks, James Riching (died September 27, 1966), Susan Abel (part time), David Ash (part time), Howard Musekamp (part time), Gladys Bley, Jane Bizzarri, Bonita Gramann, Celsa Meltebrink, Patricia Moores (part time), Joseph Nudell, Sheila Reilley, and Judith Taylor. The Respondent contends that the employees in the ap- propriate bargaining unit are the employees who work in the "front" and "backroom" other than the ones set forth above as there being no dispute as to their exclusion. The Respondent contends in general effect that its operations are of such a nature, in the type of business that it is in, so as to reveal that all employees (engaged in work pertain- ing to the maintenance of the Decision Register and the related publications and transmittal of such publications and other documents) are production and maintenance employees. The parties introduced into evidence much testimony 3 Cf. Edward Fields, Incorporated, 141 NLRB 1182. 4 The Respondent also contends in effect that it has had a good-faith doubt as to the appropriate unit and the Union's status. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and many exhibits to support their contentions. The parties were advised to point out in their brief exactly what they contended the various exhibits proved. I have carefully considered the record, the exhibits, and the testimony, the briefs of the parties and their contentions therein, and the value of the information in the exhibits not specifically pointed out by the parties.5 I am convinced from a consideration of all the evidence, as revealed later in this Decision, that the ap- propriate bargaining unit contains not only all of the posi- tions contended by the General Counsel but also the posi- tions contended by the Respondent. Since the evidence reveals that the Union clearly does not have a majority status in the appropriate bargaining unit as found, it is un- necessary to resolve the other issues The crucial issue relates to the scope of the production and maintenance unit of Respondent's employees. In resolving the crucial issue it is necessary to consider the nature of Respondent's business and the duties and data relating to the employees involved. 2. The Company's business6 Decision, Inc., the Respondent, is engaged in a busi- ness geared toward the recruiting and placement of scien- tific and technical personnel (including engineers) and personnel administrators. The Respondent collects and maintains information pertaining to (a) scientific and technical personnel (in- cluding engineers) and their addresses, (b) personnel ad- ministrators and their addresses, and (c) companies and organization structure and top personnel. The Respondent utilizes the information collected on scientific and technical personnel (including engineers) and personnel administrators in the maintenance of a re- gister. This register is referred to by Respondent as the "Decision Register" and is used by the Respondent as a general and selective mailing list for its communications with the persons listed therein. The Respondent by various of its publications and other means holds itself out to (1) scientific and technical personnel (including engineers) and personnel administra- tors as a valuable source of information or conduit in locating potential jobs, and (2) companies as a valuable source of information or conduit in locating qualified per- sons for job openings. The Respondent's publications are designed: (1) to reveal that (a) the Respondent is a valuable source to use in location of jobs or individuals for jobs, (b) Respon- dent's business is the furnishing of services in the location of jobs or individuals for jobs, and (c) Respondent's ser- vices are free; (2) to solicit information and details about individual scientific and technical personnel; and (3) to secure revenue for Respondent from advertising, the sale of publications, and related business ventures of the Respondent. One of the Respondent's publications is called Deci- sion Reports. Decision Reports is a twice-monthly 5 Much of the evidence (testimony and exhibits ). offered by the parties and received into the record, is of the type which is relevant for the pur- pose of admissibility but upon total consideration of the record is of insub- stantial materiality I adverted the parties in effect to this and requested briefs to point out in detail their contentions with regards to matter of evidentiary value in the exhibits I conclude from the failure of the briefs to point out such details that counsel recognized such insubstantiality of much of the evidence On the other hand , evidence relating to wages, holidays , vacations , and related items have a definite bearing on con- newsletter which is transmitted to individuals who are listed in the Decision Register. Decision Reports con- tains various advertisements relating to specific jobs that may be of interest to persons listed in the Decision Re- gister. An example of one of the advertisements is as follows: 7 STRUCTURAL ENG (To $15,000/BS-MS in ME) Requires experience in structural development of aircraft or aerospace vehi- cles. Will participate in the design and conduct the necessary analysis to substantiate the design of aerospace hardware. Working knowledge of the basic methods of stress analysis including the fields of plates and shells, redundant structures and fatigue strength analysis is required. Familiarity with the techniques of structural testing and computer analy- sis are highly desirable. Aeroject General Corp, Downey, CA. The Respondent in its Decision Reports solicits in- dividuals to reply as to jobs of interest to them, as to other qualified persons, and the submission of resumes. The Respondent in its Decision Reports also acquaints the reader with Respondent's Decision Placement system, with Respondent's Decision Register, and with Respon- dent's publication Decision-Job Directory. The Decision-Job Directory is an annual publication. In it the Respondent lists information as to various firms. The Respondent, in such publication, explains the listing as follows: Here's how to interpret each listing. Providing the in- formation is complete on each firm, it follows in this order: Firm Name, Address, Area Code (3 digits) followed by a slash (/), Phone Number (in seven digits), Industry and/or Products, Year Established, Sales, (Total Employees/Professional Employees). Next are Key Personnel, in this order: President, Director of Engineering, Director of Research & Development, Director of Manufacturing or Opera- tions, Director of Marketing. The individual who acts as * * Technical Employment Manager is listed last. He is the individual that resumes should be sent to. If there is more than one name after ** you may address your inquiry to the most appropriate in- dividual. An example of one of the listings in the Decision-Job Directory is as follows: A C ELECTRONICS Div General Motors Corp Oak Greek Plt, Milwaukee Wis (53201) 414/762-7000 Guidance & navigational systems and components. Est 1948 (7200/1800) Dr B P. Blasingame Gen Mgr Donald J. Atwood Dir Engg Dr Robert R Sparacino Dir Res & Dev Howard L Roat Wks Mgr sideration of inclusion or exclusion of a person from a bargaining unit Such has been carefully considered 6 The facts relating to the Company's business are virtually undisputed and are based upon a composite evaluation of all of the credited testimony of the witnesses , of stipulations and exhibits in the records. It is noted that the contentions of the parties as to the facts are similar in many respects as revealed by their briefs. Thus it may be said that the parties ' briefs have resulted in a clarification of the precise issues ' Decision Reports is also called the "green sheets" or "newsletter " DECISION, INC. 467 Fred A Best Dir Sls Engg Alvin B Goodspeed Dir Matl Robt W Schroeder Dir Prof & Scien Empt In addition to its collection and maintenance of infor- mation and its publications, the Respondent utilizes a Decision Placement System, DMR Advertising, Deci- sion Searches, and a Direct Mail Division. The Decision Placement System is revealed in essence by the following excerpt from a Reader Service Reply form contained in a copy of Respondent's Decision Re- ports. DECISION/PLACEMENT SYSTEM The Decision/Placement System (D/PS) is an addi- tional "free" Decision/Inc service for you. The D/PS is a method by which the technically qualified individual can market his qualifications (with a resume) without his identity being revealed. Our con- fidential service allows you to: (1) research the better job market, (2) advance faster professionally, (3) join the thousands of engineers and scientists who, since 1954, have received assistance from Decision/Inc in securing the "right" position. The resume form on the back of this page is the D/PS form. Complete the information and also the few brief facts (identity) listed on the bottom of this page. We will reproduce your resume the same day we receive it and forward it to our subscribers without your identity being revealed, without your address, and without your employer' s name. It will not be sent to your present employer or any other specified firms. Your name will be revealed to our subscribers only after they express interest in you. You will be contacted by them only at home. Initial here if you want to use the D/PS. The Respondent in its Decision-Job Directory and Business Register refers to DMR Advertising as one of its publications and service. The Respondent sets forth in such publications that DMR Advertising is "an exclu- sive, area or regional, personalized, direct mail recruit- ment advertising service." As best revealed by a com- posite of the credited testimony of the witnesses and the exhibits, it appears that when an employer is seeking em- ployees for a specified position or positions and desires an appearance of a direct approach on a broad basis, that the Respondent utilizes a letterhead of the employer and prepares the letter to appear as if directly from the em- ployer involved, and that the Respondent transmits said letter to a list of potentially qualified persons selected for the area involved from the Decision Register. The Respondent in its publications Decision-Job Directory and Business Register refers to Decision Searches. The Respondent sets forth in such publications with respect to Decision Searches that "with our famous Decision Register we are able to find qualified technical and executive personnel faster. Send position descrip- tions and request quotation." As best revealed by a com- posite of the credited testimony of the witnesses and the exhibits, it appears that, if an employer is seeking an em- ployee or employees for a specified position and is not in- terested in a broad search, the employer adverts the Respondent to the problem and the Respondent utilizes the Decision Register to find suitable applications for such positions. The Respondent in its publications Decision-Job Directory and Business Register refers to a Direct Mail Division. The Respondent sets forth in such publications with respect to Direct Mail Division that "we operate one of the finest facilities in Southwestern Ohio for the crea- tion and production of quality direct mail advertising. We maintain exclusive name lists of business executives as well as a national list of technical personnel. Automatic inserting (6 station Phillipsburg) is a speciality of the house. Quotations promptly submitted without obliga- tion." With respect to Respondent's Direct Mail Division, it is noted that in Respondent's 1966 Business Register the readers are advised that the Respondent can aid in "sale promotion," and can perform lithographic service for such companies relating to various business forms. Respondent's publications, individually, refer to its various services and to its publications. Thus Decision Reports refers its readers to Decision Reports, to Deci- sion Placement System, to Decision-Job Directory, to Decision Register, to the submission of resumes and in- formation about engineering and technical personnel, and to certain job opportunities. The Decision-Job Directory refers its readers to the Decision Register, to the Deci- sion-Job Directory, to the Decision Placement System, to Decision Reports, to DMR Advertising, to Decision Searches, to Direct Mail Division, and to the Business Register. The Decision-Job Directory also solicits completion of a resume form and names of companies to which the individual would like his resume sent. The Business Register refers its readers to the same publica- tions and services referred to in the Decision-Job Directory and gives more details relating to the services of its Direct Mail Division. , Respondent President Oliver P. Bardes credibly testified in effect that the Respondent, like any other busi- ness, was in business to make money. Bardes credibly testified in effect, and the exhibits support, that the Respondent did not derive revenues directly from its ser- vices relating to recruiting and placement of persons in positions. Bardes credibly testified in effect that Respon- dent's principal revenues were derived from sale of ad- vertising space in its publications . It appears thus that Respondent derives revenues from the sale of advertising space in its Decision-Job Directory and its Business Re- gister. Respondent also derives revenues from the sale of listing space for job opportunities in Decision Reports, from the sale of some copies of Business Register and Decision-Job Directory, from services rendered in the Direct Mail Division, and from lithographing and related services. It thus appears that Respondent's ability to earn revenues is primarily based upon its utilization of infor- mation of value in the recruiting , location, and placement of individuals in jobs. It appears further, however, that Respondent, having principally geared itself as an infor- mation center for recruiting , location, and placement of individuals has ventured into other usages of its informa- tion and organization structure as a revenue -deriving fea- ture. Thus it utilizes information that it has in its publica- tion Business Register as a guide for "purchasing, mar- keting, advertising, sales, credit and other commerical ac- tivities requiring business information." It also appears that the Respondent utilizes its organizational structure and techniques in Direct Mail Advertising and in some duplication and lithographic work unrelated to its "recruiting, placement, and location functions." In summary the preponderance of the evidence and 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel's and Respondent's briefs appear in agreement that ( 1) Respondent's main business is geared toward the recruiting and placement of technical and ex- ecutive personnel, (2) Respondent's business is centered around its ability to collect and maintain an information center, to convince technical and scientific personnel and employers of its source of information supply and outlet, and (3) Respondent's principal ability to derive revenue comes from the value of its usage of its information and communication media. 3. The appropriate bargaining unit A consideration of the contentions of the parties reveals that the real difference in contention is "What constitutes a production and maintenance unit of the Respondent's employees?" There is no real disagreement and I conclude and find that the description of the ap- propriate bargaining unit is as alleged, to wit: All production and maintenance employees of the Respondent at its plant located at 5809 Madison Road, Cincinnati, Ohio, excluding all office clerical employees, guards, professional employees and su- pervisors as defined in the Act. a. The dispute as to the appropriate unit Basically speaking, the General Counsel contends in effect that the "production and maintenance employees" all work in one department, and this department is located in the "back" of Respondent's building except for three employees, the janitor and two varitype operators. The janitor works all over the plant and the two varitype operators are located in the "front of the building." The parties are in agreement, as indicated before, that certain employees who work for the Respondent are excluded from the bargaining unit. The Respondent agrees that the employees contended by the General Counsel as belong- ing in the unit do belong in the unit. The Respondent con- tends that certain other employees who work in the "front" of the building also belong in the unit. b. The plants The Respondent's operation is housed in one building. In the immediate front of the building are located the ex- ecutive and related type offices. Behind the executive and related type offices is a large section type space referred to by the parties herein as the front of the building as con- trasted to the back of the building. The parties' and wit- nesses' reference to the back of the building was reference to a portion of the building separated from the front section by a wall and by swinging doors. c. Supervision9 On June 22, 1966, Respondent's supervision setup was as follows: J.W. Riching was personnel manager, execu- tive search director, and had supervision responsibilities over the disputed employees in the front half of the build- ing and the employees in the back half of the building (status not disputed). Riching was aided with respect to his supervisory responsibility as'regards the employees in the frontroom by Olive Silverman, a leadlady over the Decision Register Department, by La Vergne Heashe, who supervised to some extent the working of Claudine Nunn and Hughes (Nunn and Hughes worked with the Decision Placement Service),10 and by Claudine Nunn who served as a leadlady in the Response Department. Joe Nudell, who had some responsibility of supervision over the employees in the backroom, also had some responsibility of supervision over the varitype operators in the frontroom. In the backroom Respondent's supervision rested in Riching, Nudell, and in Katherine Baader. Riching had the overall supervision responsibility, Nudell had some supervision responsibility over all of the employees in the back, and Baader served as a leadlady for the Plate De- partment in the backroom. Baader was answerable to both Nudell and Riching, Nudell was answerable to both Riching and President Bardes. With respect to the question of "supervisory status" and the effect on those included from the appropriate bar- gaining unit, I note that the parties appear in agreement that of the "disputed employees" Olive Silverman and Claudine Nunn are leadladies. The testimony of Carns with respect to LaVergne Heashe was to the effect that Heashe exercised independent judgment in the assigning of the varitypers. The testimony of the employee wit- nesses concerning Kay Baader's duties raises a question as to whether Baader is a supervisor within the meaning of the Act. The parties' contentions, however, with respect to Baader are to the effect that Baader is a leadlady and should be included in the unit. I find it unnecessary to resolve whether Silverman, Heashe, Nunn, or Baader are or are not supervisors within the meaning of the Act. Assuming in the light most favorable to the General Counsel that Baader belonged in the bargaining unit, and that Silverman, Heashe, and Nunn should be excluded from the bargaining unit, the Union does not represent a majority of the employees in the appropriate bargaining unit hereinafter found. From the stipulations of the parties, the testimony of witnesses, and the exhibits it is not clear whether the su- pervisory functions of Silverman, Heashe, and Nunn are limited to seeing that certain specific functions are carried out or whether their authority is that of a leadlady generally over the employees who engage in such func- tions. As an example, it is not clear whether Silverman acted as a leadlady generally over employees Prather, Angelo, Bivens, Rich, Lowenstine, Mandell, Starr, Wyatt, Lindsey, Thomas, and Meinke, or whether Silver- man only acted as a leadlady over such employees when they performed work in "list research," on the 3 by 5 Decision Register cards, on zip coding, and related work, and did not act as a leadlady over such employees when they did work on "direct mail recruitment," on resumes, "reports data," etc. It is not clear whether the same em- 8 The facts are undisputed and based upon the credited testimony of all witnesses. 8 The facts are based upon stipulations and the credited testimony of various witnesses. iO Heashe exercised independent judgment in assigning work to the vantype operators and assigned work to the two varitype operators. Cams testified to the effect that Hughes worked in "list research" before work- ing on the Decision and Placement Service, that Thomas up to the time she left October 1, 1966, had worked with Nunn. The parties' stipulation of the duties of the employees seem contrary to Carns' testimony. Cams, as an official, is a relative newcomer His position would indicate however a basis for knowledge of the facts. Cams may have been confused or the parties in their stipulation may have been in error. In any event, since I do not see that a finding either way would affect the overall differently, I shall abide by the stipulation DECISION, INC. 469 ployees had different leadladies for different functions or whether for certain functions they were directly super- vised by Riching. d. The employees excluded from the unit" As indicated, certain of the persons excluded from the appropriate bargaining unit work in offices located in the immediate front of the building. Such persons working in the front office are President Oliver Bardes, Secretary Celsa Meltebrink, and Part-Time Secretary Patricia Moores. As best gathered from the testimony and Nel- son's descriptive drawing of location of the various machinery and desks in the building, certain persons ex- cluded from the bargaining unit and working in sales either work in a small office partitioned off from the main open place in the building or immediately adjacent to the front office section. These persons are Emil Berdolt, Richard Clemmer, Charles McLean, and Gladys Bley. Certain persons excluded from the bargaining unit (and working in accounting and payroll) work in an area im- mediately adjacent to the front office section. These per- sons are William Hicks, Bonita Gramann, Sheila Reilley, and Judy Taylor. Certain persons excluded from the bar- gaining unit (and working as search specialists) work only in the evening in a part-time capacity. These persons are Susan Abel, David Ash, and Howard Musekamp. Cer- tain persons excluded from the bargaining unit (and work- ing as sales representatives) have no work positions in the building. These persons are Clyde Bechnell, William Schlaudecker, and Emile Hanna. Other persons excluded from the bargaining unit are Personnel Manager Riching and Production Manager Nudell. Personnel Manager Riching's desk is located at a point immediately adjacent to the rear wall of President Bardes' office. Production Manager Nudell's desk is located in the rear room in the back of the building. The General Counsel has made no contention that the work area of the "disputed employees" and those em- ployees excluded from the bargaining unit by agreement is of evidentiary value in determining the inclusions or ex- clusions from the bargaining unit. The facts reveal in ef- fect that within the large area of "the front" that em- ployees performing various specific functions are placed in an area where employees performing similar functions are located. In effect, however, there is recognizable distinction between the area of work of the "disputed em- ployees" and the specific area of work of the employees excluded from the bargaining unit. The General Counsel has not made a contention that the "disputed employees" are office clerical in the sense that they perform work of a general "overhead" or nor- mal office routine type work. Rather his contention is basically that it is clerical in nature. The General Counsel has made no contention that the salary or wage com- parison or other benefits of the excluded office clerical as compared to the "disputed employees" has evidentiary value. As a fact, however, it may be stated that all em- ployees (excluded, disputed, or admitted to be in the unit) fill out similar application forms, that all full-time em ployees appear to enjoy the same benefits (vacation, holiday, and sick), and that all employees employed sub- stantially for typing and clerical type work are paid sub- stantially on the same basis . I am convinced, as ap- parently the General Counsel recognizes, that those em- ployees excluded who perform office clerical work are properly excluded because their work and duties are those of office clerical workers. I am also convinced that the work of the "disputed employees," which involves re- lated abilities is of such a nature that it is related to the ac- tual production of service and the publications of Re- spondent. e. The frontroom employees who worked on Decision Register and other functions12 Olive Silverman worked as a leadlady in the Decision Register Department.13 Silverman was initially employed by the Respondent on September 7, 1962, earned wages at the rate of $1.625 per hour, was a full-time employee, had as a main work location a position in the frontroom, and as part of her duties took the 3 by 5 Decision Register cards (containing names, addresses, etc., of individual technical and professional personnel) to the backroom where other personnel prepared and maintained a similar file of speedaumat plates for use in mailing and addressing publications and related material to the technical and professional personnel whose cards were in the Decision Register. Sandra Meinke was initially hired by the Respondent on May 16, 1966, and worked in the List Research Depart- ment. Meinke earned wages at the rate of $1.25 per hour. Meinke, a full-time employee, regularly worked in the front with duties of looking up names in telephone directories and adding such names to the Decision Reg- ister (the 3 by 5 card file). Meinke average 2 days of work per week in the backroom during the pertinent time involved. In the backroom Meinke's duties involved help- ing to prepare the speedaumat plates with proper zip codes, in pulling speedaumat plates, and in working on envelopes and resumes. Sonya Prather was initially hired by the Respondent on January 31, 1966, and worked in the List Research De- partment. Prather earned wages at the rate of $1.25 per hour. Prather, a full-time employee, worked in the front with duties of looking up names in the telephone directo- ries, filing cards, and adding such names to the Decision Register. Iris Angelo was initially hired by the Respondent on June 18, 1962. At some point of time early in her employ- 11 There is no dispute as to the exclusion from the unit of these persons. 12 The facts are based upon stipulation and uncontradicted credited testimony of various witnesses. According to the stipulations of the parties, the testimony, and the exhibits, it appears that these employees were within the sphere of overall supervisory responsibility of Riching and within the sphere of leadlady responsibility of Silverman, at least as regards most of their duties. One of the employees contended by the Respondent to be in the bargaining unit is an employee named Bette Graham. A study of the exhibits pertaining to Graham's employment and a list of employees submitted to the Board in a representation case matter reveals that Graham was not an employee on the crucial dates. Thus Graham's payroll records considered with other testimony of various wit nesses as to employees hired for a specific passport job convince me that Graham was hired as a temporary employee on March 17, 1966, and had ceased work as of May 28, 1966. Graham (according to her application for employment dated July 8, 1966) was hired as a regular full-time em- ployee on July 8, 1966. That Respondent so considered Graham 's status is revealed by the list of employees given the Board in the representation case referring to its employees of July 5, 1966. In this list Respondent noted that Graham was added to its list of employees "since July 5, 1966. " I conclude and find that Graham did not work as an employee in the appropriate bargaining unit at times material herein 13 The employees who worked in this department are sometimes referred to as working in list research or the List Research Department 308-926 0-70-31 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment Angelo had worked in thehackroom, apparently in the Plate Department. Prior to June 22, 1966, and for ap- parently a long period of time, Angelo, a full-time em ployee, worked in the front on Decision Reports and on the Decision Register. Angelo earned wages at the rate of $1.40 per hour. One of Angelo's duties was to take "nix- ies" (mail which had been returned reflecting an incorrect address) and to correct and file the 3 by 5 card (pertaining to the engineer or technical person) in the Decision Reg- ister file. Angelo occasionally worked in the back, proofing resumes of engineers or technical personnel that the Respondent was preparing for submission to companies.14 Veronica Bivens was initially hired by the Respondent on June 10, 1965, and worked on the Decision Register file cards and on resumes. Bivens, a full-time employee, worked in the front. Bivens earned wages at the rate of $1.40 per hour. Elizabeth Rich was initially hired by the Respondent on October 2, 1962. Rich was a part-time employee who worked in the front and earned wages at the rate of $1.45 per hour. Rich's duties involved working on Decision Re- gister cards and making corrections on such cards when the addresses thereon were found to be incorrect from "nixies." Helen Lowenstine was initially hired by the Respond- ent on April 25, 1966. Lowenstine was .a part-time em- ployee who worked in the front. Lowenstine earned wages at the rate of $1.40 per hour. Lowenstine's duties involved updating telephone calls, calling Decision Reg- ister personnel concerning information to keep such files up to date, and making corrections on Decision Register file cards. Gloria Mandell was initially hired by the Respondent on May 17, 1966. Mandell was a full-time employee who worked in the front. Mandell earned wages at the rate of $1.40 per hour. Mandell's duties involved working in list research, and in placing names on the Decision Register file cards.15 Mildred Jean Starr was initially hired by the Respond- ent on January 24, 1966. Starr was a full-time employee who worked in the front. Starr earned wages at the rate of $1.40 per hour. Starr's duties involved working in list research, in looking up names in telephone directories, and in typing and adding names to the Decision Register file cards. Beverly Wyatt was initially hired by the Respondent on June 21, 1966. Wyatt was a full-time employee who worked in the front. Wyatt earned wages at the rate of $1.40 per hour. Wyatt's duties involved working in list research, in filing, typing, and direct mail recruitment, and in typing addresses on direct mail recruitment letters. Ann Lindsey was initally hired by the Respondent on November 1, 1965. Lindsey was a full-time employee who worked in the front. Lindsey earned wages at the rate of $1.40 per hour. Lindsey's duties involved working in Decision Placement Service,16 typing resumes, cor- recting "nixies" letters, correcting "Dick strips" (strips used to aid in correcting plates),'' giving information to companies as to identities of technical or engineering per- sonnel seeking positions or answering advertisements for positions, working on reports data in Decision Reports, checking copy for Decision Reports, and at times invoicing advertisements for Decision Reports. Bette Thomas was initially hired by the Respondent on March 28, 1966. Thomas was a full-time employee who worked in the front. Thomas earned wages at the rate of $1.50 per hour. Thomas' duties involved working in list research, in filing, in direct mail recruitment, and in typing addresses on direct mail recruitment. f. Employees Heashe, Nunn, Hughes, Rupert, and Ball's LaVergne Heashe was initially hired by the Respond- ent on January 19, 1966. Heashe was a full-time em- ployee who worked in the front. Heashe earned wages at the rate of $1.875 per hour. Heashe had some element of supervision over the work of leadlady Claudine Nunn and Addie Hughes, and exercised independent judgment in the assignment of work to the two varitype operators, Ru- pert and Ball. Heashe worked on Decision Reports, was responsible for a news letter, typed invoices, did work on camera ready art, gave identities (of technical and en- gineering personnel) to employers, and typed direct mail recruitment letters and camera ready notices. Claudine Nunn was intially hired by the Respondent on February 2, 1966. Nunn was a full-time employee who worked in the front. Nunn earned wages at the rate of $1.75 per hour. Nunn's duties involved being a leadlady over the work of Addie Hughes, handling the Decision Placement Service,19 sending out resumes, giving identi- ties to employers who requested such as to_ engineer or technical personnel's name, address, and present em- ployer, and typing. Addie Hughes was initially hired by the Respondent on January 29, 1965. Hughes was a full-time employee who worked in the front. Hughes earned wages at the rate of $1.40 per hour. Hughes' duties involved working on the Decision Placement System, taking cards from advertise- ments set forth in Decision Reports, helping maintain salesmen job number books up to date with "match the man" (a correlation of the salesmen's book with adver- tisements (for positions) sold and with a contest designed to help locate personnel for such positions), helping file list research,20 and helping check copy for the Decision Reports and "logging" advertisements thereunder. g. The varitype operators, Rupert and Ball As indicated previously the Respondent had two vari- type operators, Shirley Ball and Shirley Rupert. These employees were within the sphere of overall supervisory 14 About a week before July 6, 1966, Angelo was transferred to the backroom. 15 As to many of the employees the parties stipulated to terms such as list research. Apparently employees who worked on obtaining names for the Decision Register file were considered to be in list research. 16 It is not clear with respect to the Decision Placement Service whether or not Heashe or Nunn had supervisory responsibilities over Lindsey. 17 Apparently with Silverman having leadlady responsibilities over her. 18 Heashe, Nunn, Hughes, Rupert, and Ball all appear to have been within the sphere of supervisory responsibility of Riching 11 It would appear probable that Nunn, at times, served as a leadlady over Ann Lindsey with regard to the Decision Placement Service. The parties' stipulations and evidence as to supervision are not exact enough to so determine. 20 While doing the list research function, Hughes apparently would function under Leadlady Silverman. DECISION, INC. 471 responsibility of Riching, at times received assignments from Heashe (who exercised independent judgment in such assignments), and at times received some supervi- sion from Production Manager Nudell. Shirley Rupert was initially hired by the Respondent on June 25, 1965. Rupert was a full-time employee who worked in the front. Rupert earned wages at the rate of $1.625 per hour. Rupert's duties involved use of the vari typewriter for about half of her working time, typing, filling in letters for Dorman (director of administration after July 1966), and filing source papers. Shirley Ball was initially hired by the Respondent on October 27, 1965. Ball was a full-time employee who worked in the front. Ball earned wages at the rate of $2.25 per hour. Ball's duties involved operating : a varitype- writer, making plates and negatives, and working on ready art. When Ball worked on ready art she worked in a darkroom located in the back of the building. Em- ployees Roth and Kenneth Jackson from the press sec- tion in the backroom also worked at times in the dark- room. h. Employees Hunter, Carroll, Rehling, and Smits2t Teresa Hunter was initially hired by the Respondent on May 2, 1966. Hunter was a full-time employee who worked in the front. Hunter earned wages at the rate of $1.40 per hour. Hunter's duties included filing, working on direct mail recruiting (in connection with responses from engineers and technical personnel on forms sent out with Decision Reports), and logging of greensheets (in connection with company advertisements as to position and followup as to placement of personnel and credit for salesmen who sold such advertisement space). Virginia Smits was initially hired by the Respondent on July 1, 1965. Smits was a full-time employee who worked in the front. Smits earned wages at the rate of $1.75 per hour. Smits' duties involved being a typist, working on Decision Reports responses, helping keep salesmen job number books (relating to sale of advertisement space for position openings), invoicing, and working on direct mail reports. Julia Carroll was initially hired by the Respondent on December 6, 1965. Carroll was a part-time employee who worked in the front of the building. Carroll's wage rate was at the rate of $2 per hour. Carroll's duties in- volved being a part-time typist and working on direct mail recruiting (of persons for positions). Susan Rehling was initially hired by the Respondent on May 4, 1966. Rehling was a part-time employee who worked in the front of Respondent's building. Rehling's wage rate was $2 per hour. Rehling's duties involved being a part-time typist and putting addresses on direct recruitment letters when such letters had been repro- duced otherwise. i. Business Register- employee Mosby The facts reveal that one employee, Mosby, worked on the Business Register. It is not clear whether Mosby functioned under the lead of one of leadladies, received her directions from Emil Berdolt, or only received in- structions and directions from Riching. It is clear that the parties stipulated to the effect that Riching had overall su- pervisory responsibilities as to Mosby's job. Pearl Mosby was initially hired by the Respondent on July 30, 1964. Mosby was a full-time employee who worked in the front. Mosby earned wages at the rate of $1.625 per hour. Mosby's duties involved working on the Business Register, obtaining editorial copy for the Busi- ness Register, typing the editorial copy for the Business Register, and taking advertisements for job positions. j. The backroom The parties are in agreement that the employees referred to herein who worked in the backroom are within the appropriate bargaining unit. For convenience of un- derstanding, I take license in describing the employees as being in the Press Department and in the Plate Depart- ment. k. The Press Department The employees in the Press Department were within the sphere of overall supervisory responsibility of ' Riching,22 and were supervised by Joseph Nudell, production manager. These employees and their duties and related data are herein set out. Winston Jackson was initially hired by the Respondent on February 26, 1966. Jackson was a full-time employee who worked in the backroom. Jackson earned wages at the rate of $1.50 per hour. Jackson's duties involved running a press (duplicator), a folder, and an inserter machine. Jackson also drove a truck and made deliveries for the Respondent. Kenneth Weeks was initially hired by the Respondent on March 14, 1966. Weeks was a part-time employee who worked in the backroom. Weeks earned wages at the rate of $1.65 per hour. Weeks' duties involved running a press (duplicator). John Kern was initially hired by the Respondent on June 1, 1963. Kern was a part-time employee who worked in the backroom. Kern earned wages at the rate of $1.75 per hour. Kern's duties involved running a press (duplicator) and in operating a papercutter. Robert Roth was initially hired by the Respondent on January 15, 1960. Roth was a full-time employee who worked in the backroom. Roth earned wages at the rate of $2.25 per hour. Roth's duties involved work as a cameraman, stripper, platemaker, and he ran a press (duplicator) at times. Roth also on occasion operated a folder and inserter machine. Edgar Jackson was initially hired by the Respondent on February 3, 1966. Jackson was a full-time employee who worked in the backroom. Jackson earned wages at the rate of $2.25 per hour. Jackson's duties involved running a press (duplicator), a folder, inserter machine, speedau- mat, using a camera, making plates, stripping negatives, and running a collator. Kenneth Jackson was initially hired by the Respondent on April 22, 1964. Jackson was a full-time employee who worked in the backroom. Jackson's duties involved running a press, doing maintenance work on the machines, operating a folder machine, a speedaumat, an inserter machine, and did ready camera art in the dark- 21 The stipulations of the parties reveal that Carroll, Rehling, and Smits 22 Riching was Respondent's personnel director, executive search are within the sphere of supervisory responsibility of Ricking. It appears director, and had other duties and responsibilities of overall adnumstra- possible but it is not clear whether Heashe and/or Nunn exercised lion. leadlady or supervisory responsibilities with respect to these employees 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD room. Jackson earned wages at the rate of $2.50 per hour. James Jackson 23 was initially employed on April 27, 1966. James Jackson was a full-time employee who worked in the backroom. James Jackson earned wages at the rate of $1.50 per hour. James Jackson's duties in- volved running the insert machine, small collator, and folder machine. Richard Bailey was initially hired by the Respondent on April 27, 1966. Bailey was a full-time employee who worked in the backroom. Bailey earned wages at the rate of $1.50 per hour. Bailey's duties involved being a trainee on the speedaumat machine, operating a folder, and help- ing with the mailing of material. Charles Gehlert was initially hired by the Respondent on March 24, 1965. Charles Gehlert was a part-time em- ployee who worked in the backroom. Charles Gehlert earned wages at the rate of $1.75 per hour. Gehlert's du- ties involved running a speedaumat machine, a folder machine, and sometimes running an inserter. Richard Jones was initially hired by the Respondent on March 22, 1965. Jones was a part-time employee who worked in the backroom. Jones earned wages at the rate of $1.75 per hour. Jones' duties involved the running of a speedaumat machine. 1. The Plate Department Katherine Baader was leadlady responsible for the Plate Department located in the rear of the building. She was responsible for the work of various women em- ployees and Stephen Gehlert. Baader was initially hired by the Respondent on August 21, 1961. Baader was a full-time employee, worked in the backroom, earned wages at the rate of $1.9375 per hour, instructed the women and Stephen Gehlert in their work, cut advertise- ments out of newspapers, bundled and labeled publica- tions and mail, worked on zip coding speedaumat plates, ran a collator, and proofed resumes. Bernadine Dow was initially hired by the Respondent on May 16, 1966. Dow was a full-time employee who worked in the backroom. Dow earned wages at the rate of $1.25 per hour.24 Dow's duties involved looking up zip codes for use in putting correct zip codes on speedaumat plates, filing the speedaumat plates, and inserting letters for mailing. Stephen Gehlert was initially hired by the Respondent on March 24, 1965. Stephen Gehlert was a part-time em- ployee who worked in the backroom. Stephen Gehlert earned wages at the rate of $1.25 per hour. Stephen Gehlert's duties involved looking up of zip codes, catching of mail off the inserter machine,25 and filing of speedaumat plates. Mary Jackson was initially hired by the Respondent on March 16, 1966. Mary Jackson was a full-time employee who worked in the backroom. Mary Jackson earned wages at the rate of $1.25 per hour. Mary Jackson's du- ties involved handling direct mail, and working on an in- serter and a small folder. Kathy O'Donnell was initially hired by the Respondent on June 28, 1965. O'Donnell's application for employ- ment reflects that she was hired for "part time general clerical-office-shop." Payroll records reveal that O'Don- nell worked during the payroll period ending January 8, 1966, and thereafter did not work until the payroll period ending June 25, 1966. A pay change record refers to O'Donnell as a temporary part-time employee. Payroll records also reflect that O'Donnell was terminated to "go back to school." O'Donnell's wage rate was at the rate of pay of $1.25. O'Donnell's duties involved the looking up of zip codes and listing the same on26 a "Dick strip." O'Donnell worked in the backroom. Juanita Randall was initially hired by the Respondent on April 25, 1966. Randall was a full-time employee who worked in the backroom. Randall earned wages at the rate of $1.25 per hour. Randall's duties involved filing and running a tape machine used to address labels, filing of addressograph plates, catching on the speedaumat, and operating a graphotype machine. Rose Cumby was initially hired by the Respondent on March 19, 1965. Cumby was a full-time employee who worked in the backroom. Cumby earned wages at the rate of $1.35 per hour. Cumby's duties involved working with files and filing speedaumat plates. Grace Haverkamp was initially hired by the Respond- ent on October 15, 1965. Haverkamp was a full-time employee who worked in the backroom. Haverkamp earned wages at the rate of $1.35 per hour. Haverkamp's duties involved cutting out advertisements, proofing resumes, running a collator, and filing speedaumat plates. These advertisements were for personnel for job posi- tions and also related to straight advertising about various companies' businesses. It is also clear that the purpose of cutting out such advertisements was to obtain them for use by employees in the frontroom engaged in prepara- tion of copy for various Respondent publications, for use in getting companies to utilize Respondent's search ser- vices, for use in Respondent's placement services, and for use in obtaining advertisements for Decision Reports. Donna Van Camp was initially hired by the Respond- ent on April 14, 1959. Van Camp was a part-time em- ployee who worked in the backroom. Van Camp earned wages at the rate of $1.50 for certain duties not revealed specifically by the evidence and at the rate of $1.85 for work on plates. Van Camp's duties involved operating a graphotype machine.27 23 The testimony of the witnesses and the stipulations of the parties in composite effect reveal that Baader was leadlady over the girls and the plate department and a young man named Stephen Gehlert who looked up zip codes Since Baader's jurisdiction appeared limited to the plates, zip codes, girls, and Stephen Gehlert, it appears that the male employees ex- cept for Stephen Gehlert were under Nudell. It would not affect the ulti- mate determination in this case, however, if Baader were the leadlady over employees James Jackson, Richard Bailey, Charles Gehlert, and Richard Jones. Although the parties allude to hourly rates and weekly rates, a review of the payroll exhibits reveals that although some employees' wage rates are shown in weekly figures, such as $56 per week, that in actuality if the employee worked less or more than 40 hours that it was computed on an hourly basis ($56 per week or $1 25 per hour) 25 President Bardes, at one point in his testimony, testified to the effect that he hoped that the "looking up of zip codes" was not duplicated in the front and back. The evidence reveals that when zip codes were looked up in the front for use in connection with the Decision Register that such in- formation was transmitted to the back. It would appear logical that similar information obtained in the back would be transmitted to the frontroom 26 The parties are in agreement that O'Donnell is properly included in the appropriate bargaining unit. It appears however that O'Donnell was a student engaged in temporary part-time work. Assuming that O'Donnell is in or is out of the appropriate bargaining unit, the facts as revealed herein fail to reveal that the Union is the representative of the majority of the employees in the appropriate unit. 27 Apparently to complete speedaumat plates. DECISION, INC. 473 Donna Spenny was initially hired by the Respondent on March 5, 1966. Spenny was a part-time employee who worked in the backroom. Spenny earned wages at the rate of $1.50 per hour. Spenny's duties involved being a graphotype machine operator. Jennie Mae Carter was initially hired by the Respond- ent on February 19, 1960. Carter was a full-time em- ployee who worked in the backroom. Carter earned wages at the rate of $1.50 per hour. Carter's duties in- volved being a graphotype machine operator and the fil- ing of speedaumat plates. Charlotte Nelson was initially hired by the Respondent on March 10, 1966. Nelson was a full-time employee who worked in the backroom. Nelson earned wages at the rate of $1.65 per hour. Nelson's duties involved being a graphotype operator (typer), looking up information in order to correct speedaumat plates, and filing plates. m. The janitor Gottlieb Huwyler was initially employed by the Respondent on February 3, 1965. Huwyler was a full-time employee who performed janitorial and main- tenance work of a similar nature all over the building. Hu- wyler earned wages at the rate of $1.40 per hour. At times Huwyler operated a folder machine. n. Miscellaneous facts relating to front and backroom employees In addition to the specific facts set forth above relating to the employees involved in the "appropriate unit" question, the following facts touch on the contentions of the parties as bearing upon the resolution of such question. 28 1. All of the employees (whose status in the ap- propriate unit is in question) who work in the frontroom (including the varitype operators) and those who work in the backroom punch the same timeclock located in the backroom. 2. With the exception of one employee, all of the full-time employees in the frontroom (including the vari- type operators) work a schedule from 8 a.m. to 12 noon, have from 12 to 1 p.m. for lunch, and work from 1 to 5 p.m. All of the full-time employees in the backroom work a schedule from 8 a.m. to 12 noon, have a half hour for lunch, and work from 12:30 to 4:30 p.m. In this respect I credit and note Bardes' testimony that he had revealed an intention to schedule the time in the backroom as in the frontroom but that the backroom employees had requested the half hour lunch period. I also note that in the past, and apparently up until a short time before this proceeding, that the frontroom was air-conditioned and the backroom was not. I also note from Nelson's credited testimony that the Respondent, at times at least, appeared interested in getting more working time on machine operations. 3. The overall evidence does not reveal any require- ment about uniforms or dress except good taste. Male employees are not required to wear uniforms but do wear work clothes. Female employees who work in the fron- troom wear dresses which are described as being nice. In the past, in the summer, some female employees in the frontroom requested the right to wear shorts. This request was denied. Female employees in the backroom apparently generally wear dresses, at times (apparently in the summer and when the backroom was not air-condi- tioned) wore shorts, and at times wore slacks. 4. The Respondent apparently grants similar fringe benefits to all of its employees. An examination of the various exhibits and payroll records, and the credited testimony of Bardes reveals, on comparison, that em- ployees in the backroom and the frontroom similarly receive sick-pay, vacation, and holiday benefits. 5. An examination of the payroll exhibits reveals that the men employees who work primarily on presses and machines generally worked more overtime than other em- ployees. Some of the female employees who worked in the frontroom and some of the female employees who worked in the backroom on occasion worked a substan- tial amount of overtime but not as much as the referred-to male employees. The majority of the female employees in the front and in the backroom did not work overtime, or if so worked only negligible amounts. 6. All of the employees appear to have been afforded the opportunity to participate in hospitalization plans wherein the Respondent would deduct premiums from their wages. 7. An examination of the application for employment and related records reveals that Respondent generally did not refer to classifications or departments on its forms. It appears, however, that since the forms provided spaces for references to departments and to classifications that at times Respondent did complete such blanks. Such forms as were completed revealed that on different occa- sions employees who clearly belonged in a similar catego- ry or department (if such) were classified differently in nomenclature but practically similar in meaning. Thus Winston Jackson's application form reveals reference to the Shop Department and "machine operator." Jones' and Kern's applications for employment forms reveal reference to the Printing Department. Various applica- tions for employment forms reveal reference to Decision Register Department and to list research clerks. Ran- dall's form revealed reference to Production Department and position of postal record clerk. Haverkamp's form revealed no designation as to department but as being hired to a position of "general clerk." O'Donnell's appli- cation for employment reveals that she was hired for general clerical-office shop. I am convinced that Re- spondent. at times, attempted to characterize as best as it could the work and particular functional sphere of the em- ployees. Thus I am convinced that the employees did in a sense belong in certain categories and functional units. I note that Respondent attempted to classify its em- ployees when it submitted a list to the Board in a representation proceeding. On this list it classified vari- ous employees as "service clerical." Later, for this proceeding, it gave a more specific breakdown and also characterized various employees as "production clerk." I find these lists to be no more than an attempt to classify employees in accordance with their duties in a general manner. Considering all of the facts, I find that the Respondent operated on the basis of one intermeshed operation but in a general sense as separate smaller units. 8. The Respondent's wage structure and the granting of wages appears generally to have been on an overall ba- 2s The parties were requested to submit detailed briefs pertaining to parties and other points which would appear relevant or to touch on their points of persuasive value. I have considered all points raised by the contentions or the unit question. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sis. As an example the female employees in the front- room and backroom appear to be on a similar wage scale basis. I note also that on January 10, 1966, the Respond- ent granted wage increases to some employees in the frontroom and some employees in the backroom. 9. All employees utilized the same wash and rest room facilities. And virtually all employees punched a timeclock located in the backroom. 4. Conclusion The General Counsel contends that the jobs and skills of the employees in the backroom are dissimilar from the jobs and skills of the employees in the frontroom. I do not see that he has established this point. It is true that there are distinctions between the duties of "pressmen" and the frontroom employees but there are virtually similar distinctions between the duties of the "pressmen" and the women employees (and Stephen Gehlert) in the backroom. The duties, wages, and interests of the back and front room female employees are substantially similar. Without reiterating all of the facts, I note that maintenance of the Decision Register in the frontroom and maintenance of the twin speedaumat file in the back require virtually the same skills and duties The General Counsel contends that the "wall" between the front and back room has meaning, and that the difference in the work schedules and dress of the front and back has meaning. However, two of the employees the General Counsel contends are in the unit work in the frontroom. The General Counsel also appears to contend that since Respondent indicated a desire to move the varitype machines into the back that this limits a production and maintenance unit to the backroom. Although there are some distinctions between the vari- ous employees as indicated, I am convinced, conclude. and find that the production and maintenance unit herein is not limited to a backroom department The ultimate test of what category an employee is in is not what an em- ployer or employee would describe but rests on the overall community of interest. On the facts of this case, I am convinced that the inter- related functions of the various employees and the pur- poses of the business reveal a community of interest among the employees working on service functions, on maintenance of the Decision Register, on manintenance of the speedaumat files, and on the printing of the publica- tions connected with the service functions. I see little distinction between the interests of employees working on the Decision Register and related functions in the front and the speedaumat functions in the backroom. All of the work is closely related to producing the services and ability to produce such services of the Respondent. I conclude and find that the appropriate production and maintenance bargaining unit includes such employees doing such duties in the front and the back room.29 I thus find that Sandra Meinke. Sonya Prather, Inis Angelo. Veronica Bivens, Elizabeth Rich. Helen Lowen- stine, Gloria Mandell, Mildred Jean Starr, Beverly Wyatt, Ann Lindsey, Bette Thomas, Addie Hughes, Shirley Ru- pert, Shirley Ball, Teresa Hunter, Virginia Smits, Julia Carroll, Susan Rehling, Pearl Mosby, Winston Jackson, Kenneth Weeks, John Kern, Robert Roth, Edgar Jackson, Kenneth Jackson, James Jackson, Richard Bailey, Charles Gehlert, Richard Jones, Bernadine Dow, Stephen Gehlert, Mary Jackson, Juanita Randall, Rose Cumby, Grace Haverkamp, Donna Van Camp, Donna Spenny, Jennie Mae Carter, Charlotte Nelson, and Got- tlieb Huwyler all fill positions within the appropriate bar- gaining unit. Assuming in the light most favorable to General Coun- sel's possible contentions that Olive Silverman, LaVergne Heashe, and Claudine Nunn are supervisors and excludable from the unit, that Katherine Baader is not a supervisor and is includable in the unit , and that Kathy O'Donnell is a regular employee includable in the unit, the established and assumed number of employees in the bargaining unit is 42. Thus the General Counsel's contended 18 or 19 designations as to representation rights, if accepted and accorded full value, fail to establish a majority representative status for the Union. I therefore conclude and find that the General Counsel has failed to establish that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union. B. Interference, Restraint, and Coercion 1. Events ofJune 22, 1966 so Bardes called Kenneth Jackson into his office on June 22, 1966, and told him that some union people had been there, that he did not know what union the people were from, and that the Union had demanded recognition. Bardes asked Kenneth Jackson if he knew anything about "this." Kenneth Jackson told Bardes in effect that he did not know anything about the matter. Bardes asked Ken- neth Jackson if he had signed a union card. Kenneth Jackson told Bardes that he did not have to sign a card, that he was already in the Union. Bardes asked Kenneth Jackson if any of Jackson's brothers had signed cards. Kenneth Jackson told Bardes that he could not answer for his brothers. Bardes asked Kenneth Jackson if he had heard anyone in the back discussing the Union. Jackson told Bardes that he would not answer about this matter. Considering the foregoing, it is clear and I conclude and find that Respondent, by Bardes' conduct, engaged in il- legal interrogation about employees' union activities or desires within the meaning of Section 8(a)(1) of the Act and that thereby the Respondent has violated Section 8(a)(1) of the Act Bardes, on June 22, 1966, also told Kenneth Jackson that he was getting together a profit-sharing plan that would net each employee five or six hundred dollars a year and he said he was going to get it into effect as soon as possible. The Respondent adduced evidence to reveal that it had in fact been considering a profit-sharing plan. However there is no evidence to convincingly reveal that Respond- ent's stage of thinking or decisional process had reached a stage of decision as regards a profit-sharing plan. Considering all of the foregoing, and even assuming that Respondent had seriously considered a profit-sharing plan and was revealing in fact what it was considering, I am convinced and conclude and find that the announce- ment of its planning, timed with the initiation of union ac- tivity, and coupled with illegal inquiry as to employees' union activities, reveals that such announcement of plans ie See R L Polk, 123 NLRB 1 171 The question involved herein is not that of a "craft" or department unit - but the question of a production and maintenance unit. 30 The facts are based upon the credited testimony of Kenneth Jackson DECISION, INC. 475 for profit sharing was made for the purpose of soliciting employees to abandon union activity and thus thereby the Respondent violated Section 8(a)(1) of the Act. I find no evidence relating to the institution of a paid vacation plan as alleged. Furthermore, the facts in the case reveal that Respondent has a paid vacation plan. Perhaps Kenneth Jackson's testimony (that Bardes told him that the green sheets (Decision Reports) would be out next week and that Jackson could take a couple of days off with pay and come up to Bardes' farm and go fishing) was adduced to support the allegation concerning a "paid vacation plan." At most I would construe this testimony, if credited, as supporting an allegation of a promise of specific benefit as to the incident. This is not alleged as such and I note that the General Counsel's al- legation is specific as follows-"in soliciting an employee to withdraw from the Union and promising the employees economic benefits in consideration thereof"; to wit: "in- stitution of a profit-sharing plan and paid vacation plan for employees." Bardes credibly denied promising Kenneth Jackson "days off with pay" to go fishing at Bardes' farm. Both Bardes and Kenneth Jackson impressed me as witnesses attempting to tell the truth as they knew it. I am con- vinced that there was some discussion about the farm and fishing, but I am convinced that Kenneth Jackson has confused what was said with respect to the matter. I credit Bardes' denial that he promised Kenneth Jackson a couple of days off with pay to go fishing at Bardes' farm. 2. Events of June 23, 196631 On the morning of June 23, 1966, Plant Production Manager Nudell told Edgar Jackson that if Jackson would keep his mouth shut about the Union and vote against it, Jackson would get more money. Nudell told Jackson that this came straight from the "horse's mouth." Considering the complaint allegations and the forego- ing facts, I conclude and find that the Respondent, by Nu- dell, on June 23, 1966, made a promise of benefit designed to interfere with the employees' right of collec- tive activity. Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find. 3. Events of June 24,1966 Kenneth Jackson credibly testified to the effect that on June 24, 1966, around 10 a.m., he was walking by where Bardes was in the receptionist's office, Bardes was talk- ing to employees Kay Baader and Grace Haverkamp,32 Baader and Haverkamp were proofing resumes, and Bardes made the statement that, "If the Union comes in, I am going to move all the equipment down to my desk" and Bardes stated, "I don't need you people." Considering the foregoing, it is clear and I conclude and find that the Respondent, by Bardes, threatened em- ployees with cessation of operations if the employees designated and selected the Union as their collective-bar- gaining representative . Such conduct is violative of Sec- tion 8(a)(1) of the Act. I so conclude and find. 4. Events of June 24, 1966 On June 24 , 1966, Plant Production Manager Nudell told Edgar Jackson that President Bardes had told him (Nudell) that he would close the shop down before allow- ing the Union in and that he did not need any of the equip- ment there and could replace any of the employees on the equipment. Kenneth Jackson was there for part of the conversation. Kenneth Jackson asked Nudell if he would be replaced. Nudell told Kenneth Jackson that he would replace him if he continued to be for the Union. Either at the time of the foregoing conversation or the next conversation that Edgar Jackson had with Nudell;33 Nudell told Edgar Jackson that he (Jackson ) had a great future with the Company if he would forget about the Union. Edgar Jackson told Nudell that if he had a great future with the Company that he would like to know about the future for the rest of the people . Nudell said that they would all get money if they would come in and ask for it. Edgar Jackson told Nudell that all of the women had been asking for raises and had not received raises. Nudell said that the time was not right , that, any- way, he could not change company policy. Considering the foregoing, I conclude and find, as al- leged, that the Respondent, by Nudell, on or about June 24, 1966, engaged in conduct of illegal threats of reprisals (discharge or replacement and cessation of operations) and of futility in selecting a bargaining representative because Respondent would not recognize a union, and of promise of benefits to dissuade employees from union ac- tivities . Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find. 5. Events of June 27 and 28, 1966 Edgar Jackson credibly testified to the effect that on June 27, 1966 , Bardes spoke during working hours to him when he had gone to have a job "okayed" by Production Manager Nudell . Bardes asked if he were Ed Jackson. Jackson told Bardes that he was. Bardes told Jackson that he wanted to inform him that he was going before the Na- tional Labor Relations Board and file unfair labor prac- tice charges against him for soliciting for the Union on company time . Jackson replied, "Yes, sir." Bardes then stated , "You can solicit over in your saloon or over in their parking lot , but you can not solicit on my property or my parking lot." Roth credibly testified to the effect that on June 28, 1966, Bardes questioned him as to whether there was any organizing going on on company time. Before Roth could reply, Bardes told Roth that there was not any organizing allowed on the company property, that he (Bardes) owned the property and could do with it exactly as he wanted to , that he could sell the machinery and farm the work out, and that he did not really need the employees "back there." 31 The facts are based upon the credited testimony of Edgar Jackson. The General Counsel alleged in his complaint various conduct of Nudell occurring on June 24 and 28, 1966. At the hearing the General Counsel amended his complaint to include an additional allegation of conduct oc- curring on June 27 , 1966 As the witnesses testified , it became apparent and it was clarified that the amendment was with reference to conduct on June 23, 1966. 32 There is no question that Haverkamp is a nonsupervisory employee. 13 The events clearly testified to as occurring on June 24, 1966,, are clearly with reference to the complaint allegation pertaining to June 24, 1966. Said allegation also referred to the promise of unspecified benefits. The testimony herem pertaining to such benefits and alluding to as having occurred on June 24 , 1966, or a following conversation is sufficiently tied in to the allegation for purposes of litigation. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Considering the foregoing, I conclude and find that the General Counsel has established that Respondent, by Bardes, on June 27 and 28, 1966, interfered with, restrained , and coerced employees in their right to engage in union activity by restricting such employees' right to engage in such rights on company property during non- working time. Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find.34 6. Events of June 28, 1966 a Bardes' conversation with Nelson The facts relating to the issues involved as to what oc- curred on June 28, 1966, are revealed by the credited testimony of Charlotte Nelson Nelson testified that around 8 a.m. on June 28, 1966. Bardes had her come to his office and engaged in a conversation with her. What occurred is revealed by the following excerpts from the credited testimony of Nelson: A. Yes sir , he asked me to sit down and I sat down and he went around his desk and sat down at the desk and he said, have you heard anything about the union activities going on and I said I have heard some talk of it He wanted to know what I thought about it, whether or not I had been asked to sign a card or asked to join the union and I told him I had been ap- proached on it and he said, well I want to talk to you a little bit. I want to tell you something about this. He said now you know these fellows in the back once be- fore tried to get a union in here and they didn't get it in and they are trying again and they are not going to get it in this time. He said I am prepared to go to any lengths and to spend any amount of money to defeat this union purpose. He said and I interrupted him to say well, Mr. Bardes, I belong to a waitresses' union. I am in good standing. I am a full fledged member and he said the waitresses' union doesn't mean a thing around here, it won't mean anything here This is another union , he said, it doesn't have any bearing on this union and I said what do you mean this union9 and he said well this is a union concerning printers and I said well that let's me out because I am not a printer and he said they were going to take in all production workers also, so I said I suppose that would take in me too because I work on graphotype and that's production work and he said, that's right and he said I would like for you to go out there and talk to all these people and try to get them not to sign union cards and not to go along with the union. He said I think you can be pretty influential in this and I want you to be strong and I said, Mr Bardes, I am strong and he said I want you to be determined, I want you to talk for me and talk against the union and I said I am strong and I am determined for what I think is right, but all unions stick together and I be- long the waitresses ' union and I am a member it good standing and I won 't cross any picket line and he said, even though anybody has already signed a union card, that doesn't mean they can't come in to work if they want to and I said I don't intend to have any trouble and he said you don't have to worry about any trouble . We are going to have police pro- out. from work and I said , well I won't cross the picket line and he said , well, there is some people out there that are troublemakers and he said there are five Jacksons - he said there are four fellows and one of those fellows has got his wife working there and there is another young man that they just brought up that's a friend of theirs' that just came up from down in the hills and he said they all work together and they all stick together and they are the troublemakers and I said, what the dickens are you talking about, how can you say they are troublemakers , they work together and we've been getting the work out and he said I will have to admit we have been getting the work out , they've been getting it out pretty good and he said anybody that talks to you is a troublemaker in my book and I said, well I couldn 't say anything about that because we work together, we are all back there together and I feel that the work is going on and he said , well, I want to tell you something. I know the law. I have to allow an election here but there is enough people working here who will be in my favor that I will win this election against them and I said well I don't know anything about that and he said, now they are threatening to go out on strike and he said if they go out on strike anybody that goes out with them is not going to have a job , there won't be a job here for them and I said well , I like to work here but I don't have to work here and he said well, we like you , and we would like to know that you are going to keep on working and he went on talking, he said , you know the union has promised these people a job - has promised them benefits - and promised them a raise and this and that and that other things and I want to tell you something , when Bardes says they get a raise they will get a raise . If Bardes said they have a job they have a job and not until and then oh, he went on talking about the Jacksons and he said once more I told him , I said I don't feel like they are troublemakers and I said they work good together and we were getting the work out and he said, well that's grand but the work has been getting out but that Ken Jackson is the ringleader back there and in one way or another the Jacksons have got to go. Q. Did anything else happen in that conversa- tion? A Well, somebody knocked at the door and he got up and opened the door and stood right in front, he is a rather tall man, and he just stood there so he could look out and nobody could look in , and I heard him say, well, I can't talk to him now. I will talk to him later, and he shut the door and locked it again and he came back and sat down and I looked at my watch and I said , my goodness, I had better go out and go to work and he said, well I want you to give some pretty serious thought to what we have talked about and he said I would like for you to go out there and do what I asked you to do, so I said, well Mr. Bardes, I won 't cross a picket line on a strike, so he got up and he opened the door and he said, now when you leave here you go to the washroom and then you go on back in the plant and he said that way nobody will know that you have been in here and then I went tection and if you feel that there is going to be any Considering the foregoing facts in total context, I con- trouble I personally will see that you get to work and elude and find that the Respondent , by Bardes , on June 34 Stoddard-Quirk Manufacturing Co , 138 NLRB W5 DECISION , INC. 477 28, 1966, did engage in conduct whereby (1) it inter- rogated an employee about union activities and desires in a manner constituting interference , restraint, and coer- cion within the meaning of Section 8(a)(1) of the Act; (2) it solicited an employee to refrain from participation on behalf of a labor organization and to participate in in- fluencing others against a labor organization - with such solicitation being done in a manner constituting inter- ference, restraint , and coercion within the meaning of Section 8(a)(1) of the Act; (3) it threatened that em- ployees would be discharged because of activities on be- half of a union; (4) it threatened that employees who par- ticipated in a strike would be discharged ; and (5) it threatened that it would be futile for employees to engage in union activity or to select a union representative because the Respondent would not recognize their rights. Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find. b. Bardes' conversation with Roth35 Act; (2) it threatened to subcontract out work and discharge and/or lay off employees if they persisted in union activities; (3) it promised favorable consideration as to wage increases if employees desisted from union ac- tivities ; and (4) solicited reports as to union activities of its employees in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find. 7. The Union's June 28, 1966 , telegram On June 28, 1966, the Union, around noon sent the Respondent a telegram as follows: HD PD CINCINNATI OHIO JUNE 28 1966 OLIVER BARDES 621-3974 DECISION INC. 5809 MADISON RD. On or about June 28, 1966, President Bardes telephoned Roth and asked Roth to come into Bardes' of- fice. Roth did so. Bardes asked Roth if he had heard anything about the Union being organized. Roth told Bardes that he had heard different people talking about the Union. Bardes asked Roth in effect to tell him who these people were. Roth told Bardes that they were the people in the backroom. Bardes asked for specific identification. Roth told Bardes that he had heard that a Jim Baker was part of it, that Baker was an instigator to some extent.36 Bardes asked Roth whether there was any organizing being done on company time. Before Roth could answer, Bardes told Roth that organizing was not allowed on the company property, that this was because he owned the Company and that he could do with the Company exactly what he wanted to do. Bardes told Roth that he could sell the machinery, farm out the work, and that he did not really need the employees back there. Bardes asked Roth how much he earned as wages. Roth told Bardes how much he made as wages. Bardes then asked Roth how much he thought he ought to earn. Roth told Bardes in ef- fect that he thought he should clear $100 per week after taxes. Bardes told Roth that he understood this, and then made a notation (apparently written). Bardes told Roth that he liked him, and that if he did not like someone that he could freeze them out, that he could make it hard on someone and they would leave. Bardes told Roth that he was in the process of setting up a profit-sharing plan and that since Roth was one of the older employees he would benefit the most from the plan. Bardes and Roth then discussed the Respondent's abilities to pay higher wages. At the end of the conversa- tion Bardes told Roth that if he heard anything about the Union to let him know. Considering the foregoing facts in total context, I con- clude and find that the Respondent, by Bardes, on or about June 28, 1966, did engage in conduct whereby (1) it interrogated an employee about union activities and desires, in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the ATTEN MR BARDES SINCE YOUR REFUSAL TO SEE ME THIS MORNING IN PERSON OR SPEAK TO ME BY TELEPHONE I AM SENDING THIS TELEGRAM TO AD- VISE YOU THAT I HAVE RECEIVED WORD THAT YOU INTEND TO START LAYING OFF SOME OF YOUR PRODUCTION AND MAINTAINANCE EMPLOYEES I MUST INFORM YOU THAT IF YOU TAKE THIS ACTION AND LAY OFF ANY ONE OF YOUR PRODUCTION AND MAINTAINANCE EMPLOYEES THAT WILL CONSIDER THIS A DISCIPLINARY ACTION FOR UNION AFFILIA- TION FOR RECOGNITION AND WILL LEAVE ME NO CHOICE BUT TO WITHDRAW THE SERVICES OF YOUR PRODUCTION AND MAINTAINANCE EMPLOYEES /S/ JAMES L. NICHOLS ORGANIZER REPRESETATIVE CFN FURNISHED JAMES L NICHOLS LOCAL 8L LPIU WE51 W. MCMICKEN AVE CINCINNATI 14 OHIO 8. Events of July 1, 1966-Bardes' talks to Kenneth Jackson37 Around 8 a.m. on July 1, 1966, Bardes spoke to Ken- neth Jackson. Bardes told Kenneth Jackson that the greensheets (Decision Reports) were off $10,000 due to the fact that he had spent all of his time on union activity and that he could not make any sales. Bardes told Ken- neth Jackson that he was going to lay off four or five peo- ple. Bardes told Kenneth Jackson that he was going to lay off the youngest ones here, that this was the way the Union would do it. Bardes asked Kenneth Jackson if this were not so. Jackson replied that he guessed that it was but there was enough work for at least four or five per- sons. Bardes said that there was not. In the conversation Bardes told Kenneth Jackson that he had official word from the Union that if he laid off anybody that the em- ployees would go on strike. Bardes told Kenneth Jackson 35 The facts are based upon the credited testimony of Roth It cannot be Baker was. Whether Roth was referring to a man whose last name he did determined whether this occurred in the morning or afternoon from the not know, or whether Roth was referring to an outsider who was helping record the Union is not clear. 36 Other than this testimony, I find nothing in the record to reveal who 37 The facts are based upon the credited testimony of Kenneth Jackson. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he guessed that Jackson would be on strike on Tuesday. Apparently the foregoing was offered into evidence in support of General Counsel's complaint allegation alleg- ing in effect that the Responden on July 1, 1966, threatened an employee that Respondent would lay off employees because of their efforts at self-organization and that such efforts would result in a strike on July 5, 1966, because of such layoff. The facts in the instant case support a finding that the Employer had an economic justification for a layoff around July 1, 1966. Viewing the remarks made by Bardes to Kenneth Jackson on July 1, 1966, in total con- text, I am convinced that the statements do not constitute a violation of Section 8(a)(1) of the Act. Bardes' state- ments clearly indicated to Kenneth Jackson that the layoff was because of economic reasons and that the basis for selection was to be on a nondiscriminatory basis. Bardes' statement about the Union's message of strike action and about his "guess" that Jackson would be on strike was not coercive in nature or manner. I conclude and find that the General Counsel has not established the foregoing conversation as being violative of Section 8(a)(1) of the Act. 9. Events of July 1, 1966 - Bardes' talk with Roth In the evening of July 1, 1966, Bardes spoke to Roth about the expected strike. Roth's testimony as to this in- cident is as follows: A. He wanted to know if I thought everybody or if I could talk everybody into going out on strike. He figured that that way- Q. What did he say? Just tell us what he said to you. A. Well, as I can remember it, I am. Q. All right. And - let's see. He came back and he asked me if I could talk everybody into going out on strike and he said in that way it would be a show for us, for the Union, and it would show how few people actually were interested in the Union and that actually wanted to go into a Union, and I said, well, the way it looked to me I would not have to talk very much, I could see where it was all leading at that particular time, and that it was definitely going to go into a strike. And he said, "Well, good," and he walked away. Roth, as a witness, impressed me as being confused in his testimony as to this incident. I was left with the im- pression that he had expressed what he believed had hap- pened but not an accurate recollection of what actually was said and done. From his testimony it would appear that he was to talk everybody into going out on strike and that this would show how few people were actually in- terested in the Union. Since the facts reveal that the Union had sent its message of strike action if layoffs occurred, and since the Respondent had already revealed on July 1, 1966, its plans of layoff action, I am convinced that the Bardes-Roth conversation boiled down to a discussion of the same and more or less an argument by Bardes that "do the best" you can and you will see how weak you are. Even accepting Roth's testimony at face value, when considered in total context, the evidence does not prepon- derate for a finding that Bardes solicited an employee to encourage other employees to engage in a strike in order that Respondent might undermine the strength and sup- port of its employees for the Union. I conclude and find that the General Counsel has failed to establish a viola- tion of Section 8(a)(1) of the Act, as alleged. 10. Events July 1-5, 1966 -overtime issue38 The facts reveal that the pressroom employees had, prior to the event of the Union, worked a fairly regular amount of overtime. Nelson's credited testimony revealed in effect that the Respondent utilized overtime as a means of getting more work out of the machines. On June 30, 1966, Nudell asked Edgar Jackson to work overtime. Edgar Jackson told Nudell that he could not work overtime with his (Nudell's) threatening to lay off production employees. Nudell told Edgar Jackson that he was demanding that he (Jackson) work overtime, that he had called his lawyer and had been told by the lawyer that he could fire him if he.did not work overtime. Edgar Jackson told Nudell that if he was going to fire him to do so, but not to threaten him. Nudell told Edgar Jackson that he was not saying that he was going to fire him but that he was saying that he could fire him. Edgar Jackson told Nudell that since Nudell had called his lawyer to let him call his lawyer. Nudell told Edgar Jackson that he could punch out and call whomever he wished to. Edgar Jackson did so and was advised to work by the union representative. Edgar Jackson returned and told Nudell that he would work 1 hour overtime. Nudell told Jackson that he would work the average amount of overtime he had worked. A short time later, apparently after comput- ing Jackson's previous average amount of overtime, Nu- dell returned to Jackson and told Edgar Jackson that he would work 3-1/2 hours' overtime. Nudell and Jackson argued and finally compromised with the result that Jackson worked 2 hours' overtime. On June 30, 1966, Nudell asked Kenneth Jackson to work overtime. Kenneth Jackson told Nudell that he could not do so. Nudell asked Kenneth Jackson if he were refusing to work overtime and Kenneth Jackson replied yes. A few minutes later Bardes came to where Nudell was, apparently a few feet from Kenneth Jackson. Nudell told Bardes that Kenneth Jackson was refusing to work. Bardes stepped over to where Kenneth Jackson was and asked him if he were refusing to work overtime. Kenneth Jackson replied that he was refusing to work overtime. Bardes told Kenneth Jackson that this was grounds to fire him, that he had talked to his lawyer and had been told that if "you don't work overtime, I can fire you," Ken- neth Jackson told Bardes to go ahead and fire him. Bardes told Kenneth Jackson that he was on his way out. In the conversation Kenneth Jackson had related to Bardes that he was refusing to work because there were rumors going around that Bardes was laying off people, that if there was no work for them there was none for him. On July 1, 1966, between 2 and 4:30 p.m., Nudell 38 The facts are based upon a composite of the credited testimony of Roth, Edgar Jackson, and Kenneth Jackson. I find Roth's timing of the statements to Bardes more reliable than Edgar Jackson's timing thereof. DECISION, INC. 479 again asked Edgar Jackson to work overtime. Edgar Jackson told Nudell that he could not, that the Union had put an overtime ban on the shop, that there would not be any overtime work because the Company was laying off four production employees that afternoon. Nudell and Edgar Jackson walked over to where Kenneth Jackson and Robert Roth were. Nudell asked Kenneth Jackson to work overtime. Kenneth Jackson told Nudell that he would not do so. Nudell told Kenneth Jackson to wait a minute, that he wanted a witness. Apparently he obtained a witness, Emil Berdolt, and noted the same on a piece of paper. Nudell told Kenneth Jackson that "they" were putting their jobs in jeopardy by not working the over- time. On July 5, 1966, around 8 a.m., Bardes and Kenneth Jackson had another conversation as is revealed by the following excerpts from Kenneth Jackson's testimony. A. On July 5 the day before we went on strike I came into work about ten of 8:00 in the morning and he met me at the door. Q. Who met you? A. Oliver. Q. And he - A. And he said, "Ken, come in my office." I didn't even have time to ring in, he dragged me in there, you know, and he said on Friday that some- body had been messing with his equipment, sabotaged it, as he called it, and he said he had reason to believe it was me. I told him that he was standing there when I left Friday ' night and that he knew that I didn't touch anything and evidently somebody found a rag in it. Q. What that, what did he say to you? A. He said, "I am holding you responsible." And he said that if anything happens to any of my machinery back there, he said, "I am going to get wit- nesses to swear that you did it and have you thrown in jail and the key thrown away." And I asked him who his witnesses were, Joe Nu dell, and he said, "No, not Joe Nudell," he said, "My name is Bardes and I got the power and the money and if Barden said you got a job, you got a job, if he said you are fired,, you are fired; and if Bardes says there is no Union coming in here, there will be no union in here." Yes, he told me I was chicken shit if I didn't quit. I told him he was chicken shit if he didn't fire me. He said he wouldn't fire me and I told him I wasn't quitting. He told me he would see to it that I did. On July 5, 1966, around 4 p.m., Nudell again spoke to Edgar Jackson about working overtime. Edgar Jackson again told Nudell that he would not work the overtime because the Union had an overtime ban on the shop as a result of the layoffs. Nudell then went to Kenneth Jackson and asked him if he would work overtime and Kenneth Jackson similarly said that he refused to work overtime because of the Union's overtime ban. The General Counsel contends that the Respondent in- terfered with, restrained, and coerced employees in the exercise of their rights by (1) soliciting employees to abandon a concerted effort of refusing overtime work and (2) threatening employees with discharge if they refused to work overtime work. Considering the factual situation in this case, I find no merit to the General Counsel's con- tention. The employees involved had as a matter of prac- tice worked overtime hours when needed. The Respond- ent's business was geared to such a practice. Under such circumstances the working of overtime was a regular job function of the employees involved. The employees' refusal to work overtime constituted in effect a refusal to work or to strike as regards part of their working hours. That the employees could have concertedly engaged in a total work stoppage is not in issue. The employees, how- ever, under the circumstances, were not entitled to have a partial work stoppage and to work part of the time. Under such circumstances, I find nothing improper in the Respondent's solicitations to such employees to work as they regularly did, or to make it plainly known that the failure to work as they regularly did meant dismissal. I thus conclude and find that the General Counsel has failed to establish that the Respondent violated Section 8(a)(1) of the Act by soliciting employees to work their regular overtime, or by threatening employees with discharge if they do not work their regular overtime.39 Considering Bardes' statement to Kenneth Jackson on July 5, 1966, in context with all of the other facts, I corn clude and find that the statement "and if Bardes says there is no union coming in here, there, will be no union in here," constituted interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. I do not, however, conclude and find that the statements as a whole constituted a threat to discharge an employee because employees had designated the Union. In total context I am convinced that Bardes conveyed his belief that Kenneth Jackson had engaged in sabotage, and that he would discharge Kenneth Jackson if his machinery were damaged, and that he, Bardes, would prevail in such an event. C. The Discriminatory Layoff 1. The "Permanent Layoff" of four employees, July 1, 1966 On July 1, 1966, the Respondent laid off four of its em- ployees who worked in the backroom. These employees were Richard Bailey, Bernadine J. Dow, James Jackson, and Mary Jackson. Joseph Nudell presented on July 1, 1966, to Richard Bailey, Bernadine J. Dow, and James Jackson their checks and a letter. The letter in effect informed these employees that "We regret to inform you that due to lack of work in your department and a decrease in sales, we are forced to permanently lay off a number of junior mem- bers of our company. Unfortunately, you are in that category." Mary Jackson was not at work on the afternoon of July 1, 1966. Nudell sent Mary Jackson, on the same date, a letter advising her of her termination in the same vein as the other referred-to letters. The General Counsel's major contention appears to be that the Respondent laid off the employees as a means to cause the other employees to go on strike. The General Counsel appears to argue that by such conduct the Respondent was undermining the Union. The General Counsel also appears to argue that the Respondent laid off the four employees as a means of getting at the union troublemakers (the Jacksons and their friends). The 39 See Valley City Furniture Company, 110 NLRB 1589 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel's basic argument is that discrimination is proven by various statements of Respondent, by the placement of the employees in "permanent layoff status" instead of just "layoff status," and by alleged availability of work. As indicated hereinafter I am convinced that the vari- ous incidents of conduct of Respondent found violative of Section 8(a)(1) do constitute evidence which reveals a propensity to take illegal discriminatory action relating to union adherents. Whether such action was actually un- dertaken depends on an evaluation of the basis for the layoff, actual motivation in the selection of employees for "layoff," and the nature of the layoff itself. I find no merit to the General Counsel's contention that the Respondent laid off the four employees because he wanted the other employees to go on strike. The General Counsel's main argument appears to be that the remarks made by Bardes to Kenneth Jackson and Roth on July 1, 1966, support his argument. The facts regarding Bardes' statements to Kenneth Jackson and Roth have previously been set out in this Decision. In total context I am con- vinced that Bardes' statement to Kenneth Jackson was to the effect that he had to lay off employees for economic reasons and that such would be done on a fair basis (as the Union would want). In total context Bardes ' remarks about the expected "strike" and Kenneth Jackson's ex- pected participation constitute mere recital of what ap- peared to be the events which would follow. With regards to Bardes' statement to Roth, I do not find that in total context it amounted to more than a reply (to the union threat of strike action) that the union adherents should do the best that they could and they would see how weak they were. At the hearing it appeared for a while as if the General Counsel was trying to prove, as alleged, that the Re- spondent was trying to undermine the Union by the strike. Thus it appeared that evidence was being offered as to Respondent's actions regarding the recall of strikers after the strike was completed. When questions directed to specifics of whether the strikers had been reinstated to their former positions developed, the General Counsel appeared to change his position and averred that he was not litigating the point, that he had not investigated the matter, and that such issues were compliance issues. The facts as presented do not establish that the Respondent utilized the strike as a means of ridding itself of union adherents.40 2. Economic basis for layoff As previously indicated, the Respondent's services and functions are complex and interrelated. That portion of Respondent's business related to obtaining , filing, and evaluating information logically appears to be of a nature that would require employee attention on a continuous basis. The preparation of information and material for in- clusion in publications would also appear to be of a nature that would require employee attention on a continuous basis. Similarly, the operation of presses and printing of publications would appear to be of a nature that also required , generally speaking , continuous work. Thus a publication to be printed in August 1966 would require the printing of its separate pages on a continuous basis for 40 The record reveals that some other union adherents do not work for the Respondent The General Counsel, however, has not litigated nor proven that the reasons for such terminations can be attributed to a period of days or months . The placement of the in- dividual sheets together for the finished publication would appear to occur after completion of most of the printing. Similarly, the mailing of the publication would also occur at the later time. Thus there would appear to be an ebb and flow of the work relating to putting the complete publication together and mailing the publica- tion. In the spring of 1966 the Respondent was working on a special job called "Passport" relating to recruiting of personnel for various concerns . The Respondent hired many new employees on a temporary , part-time, and regular basis for this job. After completion of this job, some of the employees hired for said job were retained for work on the completion and mailing of the annual publica- tion Decision Job Directory. During this time the Respondent was also engaged in having Its Decision Reg- ister and speedaumat files corrected regarding zip codes. Around June 29, 1966, most of the work relating to the mailing of the 1966 Decision Job Directory had been completed.41 Also, during the period of time between June 22 and July 1, 1966, President Bardes devoted much of his time to activities concerning the problem of the Union trying to organize his plant. As a result the sale of advertisements for the July 1966 greensheets dropped off about $10,000. The General Counsel adduced, through various wit- nesses, testimony to the effect that ample work was available for all employees. Suffice it to say that the pre- ponderance of all the evidence reveals that there was a decrease in the amount of work available because of the decrease in advertising sales and completion of most of the mailing of the Annual Decision-Job Directory. Considering the foregoing and all of the evidence, I conclude and find that there existed an economic basis for the reduction in the number of employees on July 1, 1966. I find Bardes ' and Nudell's testimony to the effect that the decision to lay off some employees on July 1, 1966, was economically motivated to be credible and so credit it. 3. Basis for selection As previously indicated, the various employees of the Respondent work on a variety of jobs and each employee performs various functions . The Respondent's operations are such that in time of layoff needs there exists a great deal of flexibility in selection of employees for layoff and retention. Thus, an employee engaged in several func- tions could be laid off and the duties of such an employee could be performed by another employee who did the same functions or who had been engaged in other func- tions. It may be said that the ultimate determination in such a situation is one of judgment of what adjustments can be made. In the instant case the Respondent laid off three employees who were working on the final stages of processing and mailing the 1966 Decision -Job Directory and one employee who was working on zip codes. These employees all worked in Respondent's backroom. Considering the overall work functions and require- ments of Respondent's business and the individualjob as- signments , I find nothing improper in the selection of em- ployees from the backroom as opposed to the frontroom Respondent's action. 41 The "bulk mailing" records clearly support this finding DECISION, INC. 481 employees. The work of the employees in the frontroom revealed a connection with the types of duties and func- tions that the Employer would consider as needed on a year-round basis. The work of the employees involved in the "layoff" and some others in the backroom was of the nature having an ebb and flow in necessity. As previously indicated, there existed an economic basis for a layoff because of decreased sales of advertise- ments for the July 1966 Decision Reports and the completion of most of the mailing of the 1966 Decision-Job Directory. In July 1966, the Respondent, in addition to its normal work, was engaged in correcting zip codes for its Decision Register and its speedaumat plates. Although this work was not completed, I find it reasonable that in considering adjustment of personnel that the Respondent would consider whether an em- ployee working on zip codes could be laid off or not and the work assigned to others be completed within the time needed. The Respondent's basis for selection of employees, as revealed by Bardes to Kenneth Jackson on July 1, 1966, was to be on a seniority basis (junior employees). The Respondent's reason advanced to the laid-off employees in letters was not precisely set on a "seniority basis" but at least indicated that it was. Thus, the Respondent ad- vised such employees that because of "lack of work" in their department the Respondent was having to let some "junior employees" go. Bardes' testimony was to the ef- fect that the employees laid off were the "junior em- ployees" in the jobs being phased out. The General Counsel contends that Bardes in his testimony appeared confused as to whether the "laid-off" employees were "junior employees" in the plant or only "junior employees" in the back. From observing him tes- tify, and considering the nature of the questions and an- swers, I do not construe Bardes' testimony as being con- fused but that he in fact was answering the questions asked as best he could. On the other hand I am convinced that Bardes' testimony was merely a statement of evalua- tion of what had been done and not what the principle of selection was. Nudell in his testimony stated that he laid off the "junior employees" in the back. When questioned specifically as to the basis of selection, Nudell testified to the effect that a consideration had been made as to ability and other factors. I was not convinced from Nudell's testimony that he was frankly and truthfully telling the basis for selection of employees for "layoff." It is clear that the Respondent did not lay off em- ployees in the back on the straight basis of "seniority." In this respect it is noted that Juanita Randall was initially hired as an employee on April 25, 1966, as compared to Mary Jackson's initial hiring date of March 16, 1966. Objectively speaking, were the Respondent attempting to follow the basic principles of seniority while taking into consideration the flexibility of job assignments, it would appear that the layoff of Mary Jackson was inconsistent with the retention of Juanita Randall. A consideration of the job ditties of many of the employees in the frontroom were of such a nature that adjustments could have been made to take care of the functions of Juanita Randall as was done for the functions of Mary Jackson. Similarly, it appears strange that a temporary em- ployee, a student working during the summer, was retained as in the case of Kathy O'Donnell and a full-time employee, Bernadine Dow, was laid off. It is noted that although O'Donnell's records reveal an initial hiring date of June 28, 1965, O'Donnell only worked 1 week in January 1966 (apparently during a vacation period), prior to working on June 25, 1966. Dow was hired as a regular full-time employee on May 16,1966. The Respondent presented evidence to reveal that prior to July 1, 1966, certain machines (speedaumat, etc.) had been ordered and that these machines made the work more efficient and thus reduced the need or total man hours involved in such work. It suffices to say that the preponderance of the evidence persuades that the work from such machines would be more efficient and would reduce the total man hours needed.42 The Respondent contends that employees Bailey and James Jackson were not trained for these machines. The facts reveal this to be true. Nudell testified to the effect that Bailey and James Jackson did not have the capability to be trained on these machines. However, considering Nudell's demeanor and lack of frankness while testifying, the lack of reprimands of previous problems with respect to Bailey's and James Jackson's work, I discredit Nu- dell's testimony in such regard. The evidence prepon- derates for a finding that Bailey and Jackson were equally qualified as "trainees" for such new machines as would be expected at any time of the acquistion of new machines. As indicated previously, the Respondent deviated from its past practice of just "laying off" employees and "per- manently" laid off Mary Jackson, Richard Bailey, James Jackson, and Bernadine Dow. The nature of the "per- manent" layoff by a respondent whose history of work needs reveals the hiring and laying off of many em- ployees, when considered in context with statements which reveal great antagonism to the union troublemakers and to the Jacksons' friends, persuades for a conclusion that the Respondent's actions were motivated by discriminatory reasons. Considering the foregoing, the fact that Nudell could not frankly and simply reveal the basis for selection in his testimony, that the selection was not on a straight "junior members in the back" basis as initially testified to by Nu dell, that the selection does not reveal itself to be on a basis of objective adjustment of employees' duties as revealed by the comparative treatment of Mary Jackson and Juanita Randall (or of O'Donnell and Dow), I am convinced, conclude, and find that the Respondent selected for permanent layoff employees Mary Jackson, Richard Bailey, James Jackson, and Bernadine Dow on July 1, 1966, because it desired to rid itself of union ad- herents (the Jacksons and their friends) and did so under the pretext that it was permanently "laying off" junior employees.43 4E At the time of operations it very well may be that the number of men required to operate were the same as contended by General Counsel. This does not mean , however, that the men would have to work as many hours as before. 43 Bardes' statement to Nelson reveals , when considered with all of the facts, that Respondent's discriminatory intent was strong against the Jacksons. This thus explains the disparate treatment between Mary Jackson and Juanita Randall. Although knowledge by the Respondent of Dow's union activity is not revealed, the preponderance of the evidence reveals that Dow was selected in an attempt to foster a pretextual basis for the layoff selection. Had the selection been on a nondiscriminatory basis, it would appear that O'Donnell , the summer employee, would have been laid off before Dow was In any event the placement of these employees into a "permanent" layoff status, as indicated above, clearly prepon- derates for a finding of discriminatory intent. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The Unfair Labor Practice Strike 44 After the Respondent laid off employees Mary Jackson , James Jackson, Richard Bailey, and Bernadine Dow and apparently on July 5, 1966, the Union notified employees that a strike of Respondent's employees was called for July 6, 1966, at 8 a.m. On July 6, 1966, at 8 a.m., employees Kenneth Jackson, Edgar Jackson, Win- ston Jackson , Robert Roth, Juanita Randall , Richard Jones, and Charlotte Nelson commenced striking and picketing activity at the Respondent 's plant. They were joined in their activity by three of the laid-off employees - Mary Jackson, James Jackson, and Richard Bailey. The striking employees carried picket signs, which set forth that "Decision Inc. is engaged in unfair labor prac- tice against members of Lithographers and Photoen- gravers Cincinnati Local 8-L " The striking employees continued the strike until Sep- tember 6, 1966. On this date said employees made an un- conditional offer to return to work. As unfair labor prac- tice strikers, said employees were upon this unconditional application for reinstatement entitled to reinstatement. The matter of the employees' reinstatement as such was not litigated. The record, however, indicates that most of the strikers returned to work but the terms or conditions under which they returned is not clear. Edgar Jackson did not return to work. It is not clear, however, whether Jackson received an offer of reinstatement or whether he has in effect declined reinstatement. Considering the facts found in this case relating to statements (of Respondent's agents) violative of Section 8(a)(1) of the Act, the Union' s telegram relating to a strike if there were a layoff for discriminatory reasons, and the discriminatory layoff of employees on July 1, 1966, the strike by the employees referred to and their ac- companying picket signs, I conclude and find that the strike commencing on July 6, 1966, and until its termina- tion constituted an unfair labor strike within the meaning of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II1, above , occurring in connection with the operations of the Respondent described in section 1, above, have a close, intimate , and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain un- fair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases, as provided in the Recommended Order below, which is found necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Having found that the Respondent violated Section 8(a)(3) and (1) of the Act by the discriminatory layoff of 44 The facts are virtually undisputed and are based upon the testimony of various witnesses 45 Kenneth Jackson , Edgar Jackson , Winston Jackson, Robert Roth, Juanita Randall , Richard Jones, and Charlotte Nelson Mary Jackson, James Jackson, Richard Bailey, and Bernadine Dow on July 1, 1966, it is recommended that the Respondent offer such employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make such employees whole for any loss of earnings they may have suffered by reason of such discrimination by payment to each a sum of money equal to that which each would have earned as wages from the date of their layoff to the said offer of reinstate- ment, less net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 294, and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. 1 am recommending, as indicated, the same offer of reinstatement to be made to Dow as to the others. The record shows that Dow has returned to work but it is not clear that the infringement on her privileges by virtue of having been laid off permanently has been removed. This is a matter that can best be determined in the compliance stage of this proceeding It has been found that the strike by employees com- mencing on July 6, 1966, and terminating on or about September 6, 1966, was an unfair labor practice strike. As unfair labor practice strikers, the employees par- ticipating in such strike '45 upon their unconditional appli- cation for reinstatement on September 6, 1966, were enti- tled to reinstatement to their former or substantially equivalent jobs. Since the matter of reinstatement has not been litigated (and it is not clear otherwise as to what of- fers of reinstatement Respondent has made or the exact conditions under which some of the employees returned to work, or whether Edgar Jackson has been offered or has refused reinstatement), I find it proper for remedy of the unfair labor practices found and the effect thereof on the employees involved to require the Respondent, to the extent that it has not done so, to offer immediate and full ~einstatement to their former or substantially equivalent positions to all those employees who went on strike on July 6, 1966, without prejudice to their seniority or other rights and privileges , dismissing, if necessary, all persons hired on or after that day, and to make such employees whole for any loss of pay suffered by reason of the Respondent's refusal, if any, to reinstate them, by pay- ment to each of them of a sum of money equal to that which he normally would have earned, less the net earnings, during the period from 5 days after the Sep- tember 6, 1966, application, or the employees' return to work around September 9, 1966, whichever applicable, to the date of Respondent's offer of reinstatement.46 Furthermore and in the same accord, I find it proper to require the Respondent to notify all those employees who went on strike on July 6, 1966, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces The issues of whether or not Respondent made bona fide offers of reinstatements, or has caused the employees to have loss of earnings subsequent to their applications 46 The backpay provided herein shall be computed in accordance with the formula set forth in F W Woolworth Company, 90 NLRB 289, with interest thereon Isis Plumbing & Heating Co , 138 NLRB 716 DECISION, INC. for reinstatement andin accordance with the foregoing, can be determined in the compliance stage of this proceeding. The issues as to whether Edgar Jackson received an offer of reinstatement, or whether Jackson, in effect, declined the right to return to work, can similarly be determined in the compliance stage of this proceeding. As the unfair labor practices committed by the Respon- dent were of a character which go to the very heart of the Act, it is recommended that the Respondent cease and desist therefrom and cease and desist from infringing in any other manner on the rights of employees guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Decision, Inc., the Respondent, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 8-L, Lithographers and Photoengravers In- ternational Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing em- ployees in the exercise of their rights guaranteed in Sec- tion 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of employees thereby discouraging member- ship in or activities on behalf of a labor organization, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 6. The strike by employees commencing on July 6, 1966, and until the date of the employees' unconditional application for reinstatement was an unfair labor practice strike from the date of inception. 7. The preponderance of the evidence does not reveal that the Respondent has violated Section 8(a)(5) of the Act, as alleged. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case and pursuant to Section 10(c) of the Act, it is recom- mended that Respondent , its officers , agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of Local 8-L, Lithographers and Photoengravers Inter- national Union, AFL-CIO, or any other labor organiza- tion of its employees , by laying off, discharging, or other- wise discriminating in regard to their hire or tenure of em- ployment or any term or condition of employment , except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. (b) Interrogating its employees concerning their or other employees' union affiliation or activities, or pro- tected concerted activities , in a manner constituting inter- 483 ference, restraint, or coercion within the meaning of Sec- tion 8(a)(1) of the Act. (c) Threatening its employees with discharge, layoff, replacement, cessation of work, futility in the selection of a bargaining representative, removal of equipment, farm- ing out of work, or other reprisals because of their activi- ties, including striking activities, on behalf of Local 8-L, Lithographers and Photoengravers International Union, AFL-CIO. (d) Promising employees benefits conditioned upon their refraining from union activities. (e) Restricting employees' rights to engage in union or- ganization work on company property during their non- working time. (f) In a manner constituting interference, restraint, and coercion, (1) soliciting employees to refrain from engag- ing in union activity, and (2) soliciting employees to en- gage in antiunion activity and the reporting of other em- ployees' union activity. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer to Mary Jackson, James Jackson, Richard Bailey, and Bernadine Dow immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. (b) Notify Mary Jackson, James Jackson, Richard Bailey, and Bernadine Dow if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. (c) Make whole Mary Jackson, James Jackson, Richard Bailey, and Bernadine Dow for any loss of pay they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to their loss of earnings from the date of their discharge to the date of Respondent's offer of reinstatement in the manner set forth in the section of this Decision entitled "The Remedy." (d) To the extent that it has not been done, offer im- mediate and full reinstatement to their former or substan- tially equivalent positions to all those employees who went on strike on July 6, 1966, without prejudice to their seniority, or other rights and privileges, dismissing, if necessary, all persons hired on or after that day, and make such employees whole for any loss of pay suffered by reason of the Respondent's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which he normally would have earned, less the net earnings, during the period from 5 days after the September 6, 1966, application, or the employees' return to work around September 9, 1966, whichever applica- ble, to the date of Respondent's offer of reinstatement, all 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in accord with and in the manner set forth in the remedy section of the Decision in this case (9-CA-3976). In the same accord, notify all those employees who went on strike on July 6, 1966, if presently serving in the Armed Forces of the United States of their right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Ser- vice Act, as amended, after discharge from the Armed Forces. (e) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant or necessary to the determination of the amounts of backpay due and the reinstatement and re- lated rights provided under the terms of this Recom- mended Order. (f) Post at its plant in Cincinnati. Ohio, copies of the attached notice marked "Appendix "47 Copies of said notice, to be furnished by the Regional Director for Re- gion 9, after being signed by the Respondent's representa- tive, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Recommended Order, what steps the Respondent has taken to comply herewith.48 IT IS FURTHER RECOMMENDED that the allegations of the complaint not found to have been established as viola- tive of Section 8(a)(5) and (1) of the Act are dismissed. 47 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the U rated States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 48 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in wnting, within 10 days from the date of this Order . what steps Respond- ent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that' WE WILL offer Mary Jackson, James Jackson, Richard Bailey, and Bernadine Dow immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, and we will notify them, if presently serving in the Armed Forces of the United States of their right to full reinstate- ment upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL make whole Mary Jackson, James Jackson, Richard Bailey, and Bernadine Dow for any loss of earnings they may have suffered by reason of the discrimination against them, all in accord with and in the manner set forth in the remedy section of the Decision in this case (9-CA-3976). WE WILL NOT discourage membership in or activi- ties on behalf of Local 8-L, Lithographers and Photoengravers International Union, AFL-CIO, or any other labor organization of our employees, by laying off, discharging, or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of employment except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. To the extent that it has not been done. WE WILL offer immediate and full reinstatement to their former or substantially equivalent positions to all those em- ployees who went on strike on July 6, 1966. without prejudice to their seniority or other rights and privileges, dismissing, if necessary, all persons hired on or after that day, and make such employees whole for any loss of pay suffered by reason of the Re- spondent's refusal, if any, to reinstate them, by pay- ment to each of them of a sum of money equal to that which he normally would have earned, less the net earnings, during the period from 5 days after the Sep- tember 6, 1966, application or the employees' return to work around September 9, 1966, whichever ap- plicable, to the date of Respondent's offer of rein- statement, all in accord with and in the manner set forth in the remedy section of the Decision in this case (9-CA-3976). Consistent with the foregoing, and if necessary, WE WILL notify all those employees who went on strike on July 6. 1966, if presently serv- ing in the Armed Forces of the United States of their right to full reinstatement upon application in ac- cordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL NOT interrogate our employees concern- ing their or other employees' union affiliation or ac- tivities, or protected concerted activities, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT in a manner constituting inter- ference, restraint, and coercion solicit employees to refrain from engaging in union activity, nor will we solicit employees to engage in antiunion activity or to report on other employees' union activity. WE WILL NOT threaten our employees with discharge, layoff, replacement, cessation of work, fu- tility in the selection of a bargaining representative, removal of equipment, farming out work, or other reprisals because of their activities, including striking activities, on behalf of Local 8-L, Lithographers and Photoengravers International Union, AFL-CIO. WE WILL NOT promise our employees benefits conditioned upon their refraining from union activi- ties. WE WILL NOT restrict our employees' rights to en- gage in union organization work on company proper- ty during nonworking time. DECISION, INC. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. All our employees are free to become or remain, or to refrain from becoming or remaining, members of Local 8-L, Lithographers and Photoengravers International Union, AFL-CIO, or any other labor organization, ex- cept to the extent that such rights may be affected by an 485 agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. DECISION, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686. 308-926 0-70-32