Wendling Printing Co.

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wendling Printing Company and Cincinnati Lithographers and Photoengravers International Union, Local No. 271, Lithographers and Photoengravers International Union, AFL-CIO. Cases 9-CA-4800 and 9-RC-7801 June 30, 1969 DECISION, ORDER, AND DIRECTION By CHAIRMAN MCC ULLOCH AND MEMBERS BROWN AND ZAGORIA On April 21, 1969, Trial Examiner Harry H. Kuskin issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that those allegations be dismissed. In the representation proceedings, the Trial Examiner recommended that the challenge to the ballot of Vera Rottinghaus be overruled, and that the challenges to the ballots of 11 other employees be sustained. He found no merit in objections to the election filed by Lithographers Union. He therefore recommended that the ballot of Vera Rottinghaus, as well as the ballots of David Schwallback, Davis Diesel, and Cynthia Ashford Barrett (challenges to which had been overruled by the Regional Director and the counting of which had been deferred by the Regional Director) be opened and counted and that either a Certification of Representative or a Certification of Results of Election issue, depending upon the results of the revised tally of ballots. Thereafter, the General Counsel, the Respondent, and the Charging Party all filed exceptions to the Decision and supporting briefs, and the Charging Party and Respondent filed answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases 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, the exceptions and briefs,' and the entire record in these cases, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner with the following modifications: 'The Charging Party has filed various exceptions which collaterally attack the Regional Director's action in directing an expedited election in the face of unresolved charges alleging 8(axl) violations by the Employer, which the Trial Examiner found to have occurred and to have been a substantial cause of the strike However, such an attack, at this stage of The Trial Examiner found widespread violations of Section 8(a)(1) prior to the filing of the petition, but he concluded that Respondent's conduct between the time of the filing of the election petition and the time of the election did not preclude a free and uncoerced choice by the employees. We do not agree. Employee Gifford testified that after the strike ended and prior to the election, Supervisor Ziegler told him, "You guys are really stupid for thinking about going out on strike, or for getting in a union. You're going to create a problem in the plant and they' re going to have to do away with a couple of the departments. In the first place any of you that went outside weren't even qualified, none of you were pressmen that went outside. It was just the ones that stayed in that were really the pressmen. If you go out on strike again , you're going to end up losing your job." The Trial Examiner credited Gifford's report of this conversation but found that Ziegler's remarks did not constitute interference with the election since, in the Trial Examiner's view, Ziegler' s comments were merely a prediction that the pressmen would lose their jobs because of Union action, as they did not possess the qualifications required of union pressmen. In view of the numerous and flagrant violations of Section 8(a)(1) found herein, and the recurrent threats contained in Respondent's unlawful antiunion campaign to close down departments and discharge union activists, we find that Ziegler's remarks constituted a clear reiteration of earlier threats. Ziegler's comments, shortly before the election, were threats that the Employer would close down departments if a union were selected by the employees, and that the Employer would discharge employees who engaged in future strike activity. Under the circumstances, those statements interfered with the holding of a free and fair election and constitute grounds for setting the election aside. Accordingly, the Regional Director shall be directed to set the election aside if, based on the revised tally of ballots, the Union has not received a majority of the valid ballots cast in the election. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Wendling Printing Company, Newport, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. the proceeding, is untimely 'We agree with the Trial Examiner that the challenges to the ballots of Anna Mae Simon, Frances Sweeny, Barbara Bredwell , Tim O' Brien, David Hughes, and James Lipscomb should be sustained since, with respect to the question of election eligibility, these individuals were not bona fide employees at the time of the election 177 NLRB No. 79 WENDLING PRINTING COMPANY 545 DIRECTION It is hereby directed that the Regional Director for Region 9 open and count the ballots of Vera Rottinghaus, David Schwallback, Davis Diesel, and Cynthia Ashford Barrett in the election conducted herein on August 6, 1968, and thereafter prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of said ballots. If, according to the revised tally of ballots, the Lithographers Union has received a majority of the valid ballots cast in the election, the Regional Director is directed to certify that Union as the exclusive bargaining agent for the employees in the appropriate unit. If, according to the revised tally of ballots, the Lithographers Union has not received a majority of the valid ballots cast in the election, the Regional Director is instructed to set aside the election of August 6, 1968, and conduct a new election at such time as he may deem appropriate. resolved by a hearing, which he then ordered; and (4) issued an Order Consolidating Cases and Notice of Hearing, thereby consolidating Case 9-RC-7801 with Case 9-CA-4800 for hearing herein, and transferring and continuing Case 9-RC-7801 before the Board. The questions presented are, in broad outline, (1) whether Respondent-Employer has engaged in conduct which warrants setting aside the election; (2) whether the unresolved challenges to the ballots of the 12 employees listed above should be sustained or overruled; and (3) whether Respondent, in violation of Section 8(a)(1) of the Act, interfered with, restrained, and coerced employees in the exercise of their Section 7 rights. Respondent denies that it has engaged in any of the unfair labor practices alleged herein. Upon the entire record, including my observation of the witnesses, including their demeanor on the witness stand, and after due consideration of the briefs of the General Counsel, of Respondent, and of the Union, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY H. KUSKIN, Trial Examiner : This consolidated proceeding was heard at Cincinnati , Ohio, on November 25, 26, and 27 and December 4 and 5 , 1968; it had its genesis in the efforts of Cincinnati Lithographer and Photoengravers International Union, Local No. 271, Lithographers and Photoengravers International Union, AFL-CIO, herein called the Union or the Union-Petitioner, to become the exclusive bargaining representative of employees of Wendling Printing Company, herein called Respondent or Respondent-Employer. The representation proceeding in Case 9-RC-7801 was initiated on July 9, 1968, by a petition filed by the Union ; it was followed on August 6, 1968, by an expedited election, pursuant to Section 8(b)(7)(c) and 9(c) of the Act and Section 102.77 of the Board's Rules and Regulations . The results of the election were inconclusive in that 17 votes were cast for the Union, 13 votes were cast against the Union, and 15 ballots were challenged . On August 12, 1968 , the Union filed timely objections to conduct affecting the results of the election. The complaint in Case 9-CA-4800, which was amended at the hearing, issued on August 28, 1968 . Thereafter, on October 31 , 1968, the Regional Director issued his report on objections and challenges, in which he (1) found that only objection 5 of the six objections filed by the Union raised substantial and material issues of fact which can best be resolved by a hearing, and overruled the other objections; (2) found that with respect to the challenged ballots of Tim O'Brien , Barbara Bredwell, David Rust, Ralph W. Chalk, Jeffery Wendling , Maggie Moore, Ralph Wendling, David Hughes, James E. Lipscomb, Francis Sweeney, Anna Mae Simon, and Vera Rottinghaus, substantial and material issues have been raised which can best be resolved by a hearing; (3) overruled the challenges to the ballots of David Schwallbach, Davis Diesel, and Cynthia Ashford Barrett, but deferred the opening and counting of these three ballots until the issues, above referred to, have been The complaint, as amended, alleges, and Respondent admits, that it is a Kentucky corporation engaged in the printing business, with its office and plant located in Newport, Kentucky; that during the past 12 months, which is a representative period, it sold and shipped from this plant directly to points outside Kentucky products valued in excess of $50,000. I find, upon the foregoing, as Respondent also admits, that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent further admits, and I find, that Cincinnati Lithographers and Photoengravers International Union,Local No. 271, Lithographers and Photengravers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of Events and Some Details as to the Issues Herein. On June 24, 1968,' employees Joe Wells and Gerald L. Gifford initiated organizational activity among Respondent's employees. Contemporaneously therewith, Wells got in touch with representatives of the Union. Thereafter, during the evening of June 25, seven employees, including Wells, Gifford, William Bezold, Don Sexton, and Jesse J. Saylor met with Leonard Dourson, Jr., the president of the Union, and John Gabbard, its vice president, at the union hall to discuss their organizational objective. As a consequence, the employees embarked upon an organizational campaign, including the solicitation of signatures from employees to authorization cards for the Union.' Respondent learned on June 25 of these stirrings among its employees in behalf of the Union.' Its reaction thereto was prompt. Thus, just before All dates hereinafter are in 1968. 'No cards were signed at the union hall. 'Dan Ziegler, the bindery department supervisor, testified that he learned of this activity on June 25. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lunchtime on June 25, Richard Wendling, the vice president of Respondent, invited Wells to leave the plant and go to lunch with him as his guest at a chili parlor in town, where he raised, and discussed, with Wells the subject of union organization at the plant and Wells' connection with it. And on the following morning, June 26, Howard Wendling, president of Respondent, summoned to his office employees Sexton, Bezold, Gifford, Saylor, and Wells, in that order, and he and Richard Wendling, who was present only part of the time, had union-related discussions with each of them. In addition, Howard Wendling made an unprecedented call to employee Garwin Chandler about I o'clock in the morning on June 27' and engaged in conversation concerning the Union and his connection with the Union. Furthermore, on June 26 and for the next several days, Richard Wendling, Ziegler and, to a lesser extent, James Brauch, the production manager, were active in holding separate conversations concerning the Union with Respondent's employees. During all these aforementioned conversations referred to above, according to the allegations of the complaint, as amended, these representatives of management made promises of benefits to employees, and/or threatened them, and/or engaged in acts of interrogation, and/or created the impression of engaging in surveillance of their union meetings and activities, in violation of the Act. These conversations will be treated in greater detail hereinafter. Notwithstanding Respondent's attempt to counteract the Union's organizational efforts, the organizational drive proceeded apace. Some authorization cards were signed and meetings were held off company premises both with and without union representatives being present. One of the points of climax occurred on June 28 when Dourson and Gabbard appeared at Howard Wendling's office in order to advise him that the Union represented a majority of Respondent's production and maintenance employees and to request a meeting for the purpose of bargaining. This proved abortive as they were advised that neither Howard Wendling nor Richard Wendling was on the premises. By way of followup, the Union dispatched a registered letter to Howard Wendling the same day. The letter, which was received by Respondent on June 29, asserted the above majority claim and bargaining demand. In addition, the letter cautioned Respondent that it risked the filing by the Union against it of unfair labor practice charges, as follows. I feel at this time though that I must inform you, in the interest of industrial peace and harmony, that refusing to meet with us could lead to charges of unfair labor practices being filed with the National Labor Relations Board against Wendling Printing. Furthermore there have been allegations made to the effect that members of the supervisory and sale staff of your Company, have made thinly veiled threats that those employees seeking union affiliation and representation would lose their jobs one way or another due to these activities. Other statements indicate that bribes in the form of pay increases would be forthcoming for a "no" vote concerning Union representation. Any one of these allegations could be interpreted as an unfair labor practice under the law, and would justify concerted action, in the form of economic pressure, by those involved. 'Chandler fixed the time as 1 am , while Howard Wendling fixed the time as after 11 p in , on June 26 1 am satisfied, and find, that Chandler testified more credibly in this respect Your action very clearly would be an infringement on a basic right guaranteed by Federal Law, and that is the right of the individual to form or join an organization for the purpose of collective bargaining without fear of reprisal or discrimination for his or her activities. Hoping for a speedy and equitable disposition of this issue, without our being forced to file such charges with the National Labor Relations Board. Later that day, between 4:30 and 5 p.m., Dourson and Gabbard met with Respondent's employees and related to them what had happened during their call at Howard Wendling's office that morning , and they read the letter which they had dispatched by registered mail to Howard Wendling in consequence of their abortive call. The upshot of the meeting was a decision to proceed as follows: Dourson and Gabbard were to go in person to see Howard Wendling at the plant on Monday morning, July 1, and make a recognition demand, and, if unsuccessful in such demand, they were to make an alternative request that Respondent go to the Board offices with them for the purpose of entering into a consent election agreement, and, failing that, the employees would strike. On Monday, July 1, at 10 a.m., Dourson and Gabbard, together with Business Agent Jim Nichols, appeared at Howard Wendling's office. They learned from Howard Wendling that he had received the Union's registered letter seeking recognition and that he was still in the process of framing an answer thereto. Thereupon, they made the recognition demand, in person, and offered signed authorization cards as proof of majority. However, Howard Wendling refused to look at the cards,' and at the same time expressed doubts as to the Union's majority claim. Howard Wendling then refused the Union's alternative request that he, or his representative, go to the Board office that day or the following morning and enter into a consent election agreement among Respondent's employees. Howard Wendling's position was that the Union could file a petition for an election on its own. There is controverted testimony as to whether Dourson and Gabbard mentioned to Howard Wendling during this meeting that the employees were prepared to demonstrate against claimed unfair labor practices committed by him and his supervisors, if neither of these alternatives is satisfied. I shall consider at a later point this and other testimony bearing upon whether the strike that ensued was an unfair labor practice strike. The ensuing strike began that morning at 11 o'clock and was accompanied by picketing. During the strike, on July 9, the Union filed a petition in Case 9-RC-7801 with the Regional Director for Region 9 of the Board for an election in a unit of Respondent's production and maintenance employees. An election was thereafter held on August 6. On July 23, at the bidding of the Union, Respondent agreed to the return to work of the striking employees as a group. The strike and the picketing ended during that day and all the strikers, except two who were on reserve duty with the Armed Services, returned to work on July 24. The plant was in operation during the period of the strike and Respondent augmented its nonstriking work force by hiring 15 employees, of whom, 6 remained after the strike. In this latter group were Barbara Bredwell, hired on July 2; Tim O' Brien, Anna Mae Simon, and James Lipscomb, hired on July 3; David Hughes, hired on 'The Union apparently had 17 adherents among Respondent's employees at this point WENDLING PRINTING COMPANY July 9; and Francis Sweeney hired on July 10. In the election held by the Regional Director on August 6 among Respondent's production and maintenance employees, as heretofore noted, the status of these six new hires was put in issue by the Union's challenges to their ballots. The challenges were on the asserted ground that they were not regular employees. Also challenged by the Union at the same time, on other grounds, were the ballots of the following individuals in the prestrike complement, namely, David Rust, Ralph W. Chalk, Jeffrey Wendling, Ralph Wendling, Maggie Moore, and Vera Rottinghaus.' As heretofore indicated, the Union, in addition to challenging the ballots of these 15 employees, also filed timely objections to conduct affecting the election results. Of these objections, only objection 5 is to be resolved herein 'pursuant to the Order Consolidating Cases. Objection 5 alleges that during a period immediately prior to the election,' Respondent-Employer "engaged in practices calculated to intimidate and coerce employees, including the enforced separation and segregation of employees who supported the strike from other employees with respect to such matters as work schedules and rest period, and attempts to affect the votes of the employees by implied threats and promises and other improper conduct in meetings and individual conversations." The content of the above objection was incorporated among the 8(a)(1) allegations of the complaint issued herein on August 28, making it necessary in this consolidated proceeding to pass upon the above conduct not only as grounds for setting aside the election but as unfair labor practices, as well. B. Interference, Restraint, and Coercion Howard Wendling, Richard Wendling, Dan Ziegler, and James Brauch are the management representatives' involved in the incidents or conversations detailed hereinafter. Their supervisory status is admitted. Of these four, only Brauch did not appear as a witness. In the interest of an orderly presentation of the 8 (a)(l) issues herein, I shall group the relevant evidence chronologically, whenever feasible. 1. Respondent's first response to the organizational activity on June 25 As already found, Richard Wendling and Joe Wells went to lunch together about 12 o'clock on June 25, in response to Richard Wendling's invitation. Wells testified, in this connection , in substance as follows : During this lunch period, Richard Wendling began by pressing him to tell "what the conspiracy is," explaining that he, Richard, was referring to the Union, that he knew there was going to be a meeting that night and that he wanted him, Wells, to tell him where they were to meet and who was going to attend and what part he, Wells, had in it and why he wanted a union. He thereupon told Richard Wendling about his part in the union activity. To this, Richard Wendling replied that he, Richard, had done more for him `There were 15 challenged ballots, in all The Regional Director overruled the challenges to the ballots of the remaining three employees, namely David Schwallbach, Davis Diesel and Cynthia Ashford Barrett. 'Under established Board precedent, the critical period with respect to conduct which will be considered as a basis for objection to an election began with July 9, the date of the filing of the petition Goodyear Tire and Rubber Company, 138 NLRB 453. 'Howard Wendling and Richard Wendling will , at times, be referred to hereinafter as Howard and Richard, respectively. 547 than anybody had ever done for him in his lifetime and that he wished that he, Wells, would not go to the union meeting that night. Richard Wendling then said to him, upon learning of his determination to attend, "Well, if you want to go why don't you try to talk it down a little bit." Richard Wendling followed this with statements that Respondent could not afford the Union and did not want a union , that a plant in Wisconsin, where Richard Wendling and he had gone in order to purchase a press, is now out of business because the employer decided to liquidate the business rather than try to meet the union payroll, and that if the Union came into Respondent's plant, it would have to do away with the letterpress, since the only reason Respondent had a letterpress was as an accommodation to customers and Respondent "couldn't afford to meet a union scale." As to the foregoing, Richard Wendling acknowledged that he pressed Wells to tell him what the conspiracy was, that he reminded Wells of having done more for him than anybody in Wells' lifetime, that he did say to Wells, "If these guys try to organize the Union, you're going to a meeting tonight, try to talk it down."' He also acknowledged his reference to the Wisconsin plant, and to its problems with the union there.10 However, as to the matter of the shutdown, he acknowledged saying only that the employer involved decided that he could not make any money so he finally sold the plant. In addition, Richard Wendling specifically denied saying that Respondent could not afford a union or that, if a union came in, Respondent would have to do away with the letterpress because it could not afford the union scale, and that its only reason for a letterpress was to satisfy customers. In the light of all the foregoing, including the fact that Richard Wendling testified evasively on the issue of whether he mentioned the union in discussing the Wisconsin plant with Wells, and did not, in general, impress me as a forthright witness; and the further fact that Wells testified in a forthright and convincing manner, I find that Wells' version of this episode is the more credible, and I credit him. Accordingly I find that Richard Wendling, during this conversation, inter alia, interrogated Wells as to his and other employees' union activity, created the impression of engaging in surveillance of the employees' union activity, sought to enlist Wells' help in defeating the Union, and threatened to eliminate the letterpress if the Union came into the plant. 2. The individual interviews on June 26 The record reveals that, during the morning on this day, Henry Wendling caused employees to be sent to his office individually during working hours and that he, and his brother, Richard Wendling, who was there part of the time, engaged them in conversation about the Union. The employees involved were Don Sexton, William Bezold, Gerald Gifford, Jesse Saylor, Joseph Wells, and Dale Lohrum, and they appeared in that order." Sofar as appears, all except Lohrum had been in the group that 'According to Richard Wendling , Wells had told him, just prior thereto, that there was going to be a meeting. This conflicts with Wells' testimony that Richard Wendling indicated to him that he knew of the impending meeting "During cross-examination by the General Counsel , Richard Wendling altered his testimony which he gave on direct to say that he did not mention that there was a union in the Wisconsin plant And still later, on further cross examination by counsel for the Charging Party, he reversed himself again to say that if he said on direct that he referred to the union, then he "guessles he] did " "While Richard Wendling testified that he was not present during the 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD met with representatives of the Union the night before. Don Sexton did not testify and all that appears in this record concerning his interview with Howard Wendling that morning is Howard Wendling's testimony that, in the course thereof, Sexton told him that no authorization cards for the Union had been signed as yet. Bezold followed Sexton into the office , after being told by the latter that he was wanted in Howard Wendling's office. According to Bezold, the following then occurred: Howard Wendling began the interview by asking what was the main reason for wanting a union in the plant and his answer was that the employees wanted more pay . Howard Wendling then asked what he , Bezold, thought his pay should be. To this, he replied that he should be clearing about $ 100. Whereupon, Howard Wendling said that "he'd see what he could do," that "he couldn't do anything for a couple of weeks," but that after that he would give him a raise , although he did not say how much the raise would be. Thereafter , Howard Wendling talked about the spoilage problem , the need to save more money at the shop, and the financial difficulty of the Company. Howard Wendling testified with respect to the content of the interview but Richard Wendling testified only that he was present for a very little part of the conversation. According to Howard Wendling, he told Bezold that he "was glad to hear that no one had signed cards at the meeting that he [Bezold ] and the others were at the previous evening"; he then inquired as to whether Bezold had any problems and Bezold replied that his only problem was that he was not being paid enough and that the Union could offer him more security. Whereupon, he took issue with Bezold on the matter of security but acknowledged that Bezold should have gotten an increase by this time, blaming the delay on the Company's novel experience of having problems meeting some of its bills. He next inquired as to how much Bezold was making and Bezold said he should be clearing at least $100. To this, he answered that he could not promise anything but he will look into the matter and will talk to Bezold in a couple of weeks, and the conversation terminated on this note. It is apparent from the foregoing that the testimony of Bezold and Howard Wendling is in conflict on the issue of whether Howard Wendling committed himself to giving Bezold a raise after a couple of weeks. However, I note, in this connection, that Howard Wendling did testify that he acknowledged to Bezold that he should have gotten a raise by this time, and then promised Bezold to look into the matter and to talk to Bezold in a couple of weeks. It follows therefrom and, I find, that, viewing this testimony most favorably to Respondent, it nevertheless supports an inference, which I make here, that Howard Wendling was holding forth to Bezold the prospect and probability of an increase after a couple of weeks . Indeed, this was the implication of Bezold's testimony that Howard Wendling told him that he would be getting a raise after a couple of weeks without telling him how much it would be. Accordingly, I credit Bezold in this regard and find further that Howard Wendling held forth to Bezold during this interview the prospect and probability of a wage increase in a couple of weeks in order to dissuade him interview of Saylor and that, if there was an interview with Lohrum, he was not present, I note that both Howard Wendling and Saylor indicated that he was present during their conversation, and that Howard Wendling testified that he did interview Lohrum. Accordingly, I do not credit Richard Wendling in these respects. from supporting the Union. It is also evident from Howard Wendling' s own testimony referring to his knowledge that no one had signed authorization cards at the meeting with representatives of the Union the night before that he was thereby creating the impression of having engaged in surveillance of the union activity of Respondent's employees, and I so find. Gifford was the next to arrive at Howard Wendling's office, having been summoned by Bezold at Howard Wendling's request. Gifford testified to the following: Howard Wendling asked him "what was going on about the Union" and indicated that "he wondered why [he, Gifford] wanted to have a union in ." He then mentioned the inadequate pay and Howard Wendling replied that he did not think the Company could afford to pay more. Howard then asked what the union scale for letterpress men was and, when he furnished the information, Howard said he could not afford that much. Howard Wendling and Richard Wendling then said, in turn, that if he, Gifford, was not satisfied he should find himself another job. His response was that the complaint was not with respect to working conditions, in general, but only as to pay. At this, Howard Wendling inquired concerning his rate of pay. Upon telling Howard Wendling that he was earning $2.50 an hour, Howard said, "Well, do you think we could work out some kind of arrangement, maybe like-something like $3.00 an hour?"" He then informed Howard that he could not make any decisions without discussing the matter with the other members of the group, as they were engaged in group action . Also during this conversation, according to Gifford, Howard said that "the Union if it got in would probably cause [his] department and other departments to be abolished because ... the small presses weren't doing that much production work as far as making money" and that "the small presses were more or less to satisfy the customers." With respect to all the foregoing, Howard gave the following version: He asked Gifford whether he really felt a union is necessary, and why he felt this way. When Gifford brought up the matter of inadequate pay, he told Gifford that were it not for the Company's financial problems he would have had a raise by this time . After Gifford replied in the affirmative to his question as to whether he, Gifford, was really sold on the Union, he inquired of Gifford as to his present rate of pay and pressed Gifford as to what he thought he should be making, but Gifford would not respond, saying only that the employees wanted to see Howard as a group . This he refused to do and he again inquired whether Gifford was really sold on the Union or could be sold to "our side." Gifford's answer was that he was sold on the Union. At this point, he offered to allow Gifford to take time off that afternoon to look for a job, but Gifford refused. Gifford then volunteered that a union label would help bring more business to the Company and there was some discussion of the kind of business Gifford had in mind . In addition to the above, Howard denied that he ever offered Gifford a new rate of pay of $3 an hour and he further denied that he ever threatened Gifford with abolition of the letterpress and the bindery because the Company could not operate them under the union scale . There is also testimony by Richard Wendling that, during this interview , he asked Gifford whether he had ever gone to look for another job while employed by Respondent, that Gifford replied that he had done so once but he did not accept the 25-cent "During cross-examination, Gifford said that Howard's inquiry at this point was as follows: "Well, how would $3.00 an hour sound?" WENDLING PRINTING COMPANY 549 increase offered by another company because he liked working for Respondent better. Richard also corroborated Howard's testimony that he spoke of the Company's financial difficulty when Gifford raised the wage issue and that when Gifford was asked by Howard how much he thought he should be making, Gifford refused to say. When asked specifically whether Howard asked Gifford at one point if he could work out a wage of $3 an hour, Richard's response was "not when I was there." And he answered "not that I know of to the question of whether Howard told Gifford that if the Union came in it would cause the letterpress to be abolished because the Company was not making money on it and there wasn't that much work on it. It is apparent from the foregoing that Howard Wendling did interrogate Gifford concerning his interest in, and desire for, the Union. And it is further apparent that whether or not Howard Wendling offered Gifford a wage increase and threatened that, if the Union got in, the letterpress department and other departments would be abolished, turns upon an appraisal of the conflicting testimony of Howard Wendling and Gifford, and that Richard Wendling's testimony was not informative on these matters. As to the former, it is clear from Howard's testimony that he acknowledged to Gifford that he should have gotten a raise by this time and then pressed to find out how much Gifford thought he should be getting. While Howard testified that Gifford refused to tell him how much he, Gifford, wanted as a raise, preferring that he meet with the employees as a group on this matter, it would follow therefrom, and I find, that Howard's testimony alone warrants the inference, which I make here, that, as in the case of Bezold, Howard was holding forth the prospect and probability of an increase to Gifford in order to dissuade him from his union adherence. For, logic would dictate that Howard was not engaged in an intellectual exercise in seeking to find out how much of a raise would satisfy Gifford. In any event, I am satisfied that Gifford testified more credibly than did Howard Wendling in this regard and I conclude, and find, from Gifford's testimony that, only after Howard suggested a raise to him from $2.50 an hour to about $3 an hour, did he refuse to enter into any discussions for the stated reason that the matter of wages should be discussed by Howard with the employees as a group . And with respect to whether Howard Wendling threatened to shut down the letterpress department and other departments if the Union came in, this theme was, as found heretofore, voiced by Richard Wendling to Wells the day before, and,as found hereinafter, was voiced by management to other employees of Respondent during this same period. In all these circumstances, including the fact that Gifford impressed me as being a more reliable witness than Howard Wendling, I credit Gifford's testimony and find that Howard Wendling did threaten him in the manner testified to by him. Saylor was the next interviewee. He was summoned to the office by Howard Wendling's secretary. Saylor testified, in substance, as follows: Howard inquired as to why he went to see the Union, to which he replied that he was interested in receiving more benefits and more security. Howard then said that he, Saylor, would be better off in the long run if the Union never came into the plant and that he, Howard, was afraid that the Union "would cause some people to have to look for another job." Naming, in that connection, Gardner and Patton. Richard and Howard Wendling also indicated that they would have to close down the bindery and the letterpress because they could not afford a union. And Howard said that he would have to hire antiunion people. Also, at one point, Richard and Howard inquired as to how his wage compared with the union scale, and when he indicated that it was not near that scale, he was told to inform his foreman, John Gardner, what the union scale is and "work something out with him." The interview ended with Howard asking him "if [he] was still going to vote for the Union" and with his affirmative response. As to the foregoing, Howard Wendling testified that he inquired from Saylor, "are you really that sold on the Union?" and Saylor replied in the affirmative; that he then pointed out to Saylor that, except for requiring 7 years instead of 6 years of experience to qualify as a journeyman pressman, Respondent had set up the press department on the basis of a union operation as to wages and otherwise, and Saylor acknowledged that it was so. At this, he asked Saylor why he wanted a union and Saylor answered that as far as he was concerned it was "mainly security." He then told Saylor that "the Company could give [him] as much security as the Union can." During his testimony, Howard Wendling specifically denied that he either told Saylor that he, Saylor, would be better off in the long run if the Union did not come into the plant or that the Union would cause some of the other employees to look for work, naming Patton and Gardner; or that the Company would have to close down the bindery and the letterpress if the Union came in; and he further denied that he said he was going to hire antiunion people. And with respect to Richard Wendling's part in this interview, Howard admitted that Richard told Saylor to go see John Gardner and that Richard may have said, in that connection, to Saylor, "why don't you see John [Gardner] and check on your pay scale" or something to that effect. There is also testimony by Richard Wendling as to this interview. He corroborated his brother's testimony bearing upon his interrogation of Saylor and on the interchange with Saylor on the question of employee security and on the set up in the pressroom being on a scale similar to the union scale, with Saylor saying that his pay was consistent with the union scale. Richard Wendling was not asked concerning the abovementioned testimony of Saylor and Howard Wendling that Richard told Saylor to go see John Gardner about his pay scale. The only reference to John Gardner in his testimony was that he asked Saylor, after they were outside the office, whether he was satisfied with the set up that Gardner and he had in the pressroom and Saylor acknowledged that he was. In addition, he denied that he ever told Saylor that if the Union came in, Respondent would have to close down the shop or the bindery and the letterpress, and he further denied hearing his brother make any remark about Saylor being better off in the long run without a union and about the impact of a union in the plant on other employees, or about having to hire antiunion people. It is apparent from the testimony of Respondent's witnesses alone, and I find, that Howard Wendling interrogated Saylor as to his reason for engaging in union activity and sought to dissuade him from such activity. And it is further apparent, and I also find, from Saylor's testimony that he was told by Richard Wendling to tell his foreman the union scale and work something out with him, and from the corroboration thereof in considerable part by Howard Wendling, that, here too, as in the case of Bezold and Gifford, Respondent was holding out to Saylor the prospect or probability of a wage increase in order to dissuade him from engaging in union activity. In addition, the logic and probabilities of the situation, and i 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the fact that Saylor impressed me as a more reliable witness than either Howard or Richard Wendling, persuade me, and I conclude, and find, that Saylor testified credibly (1) that Howard assured Saylor he would be better off in the long run without a union and indicated, in effect, that other employees might lose their jobs if a union came into the plant; (2) that Howard and Richard threatened that they would have to close down the bindery and the letterpress because they could not afford a union; and (3) that Howard said that he would have to hire antiunion people. Joseph Wells was the next interviewee; he was told by Ralph Wendling, the brother of Howard and Richard, and a vice president of Respondent, to go to Howard's office. Wells testified that the following then occurred: Richard asked him whether he had started the Union. He denied this but admitted being in the Union. Howard then inquired as to the reason, and he answered that he was unhappy over having been refused a raise recently by Richard. After some discussion of reasons given by Howard for not giving him a raise, Howard steered the discussion to the favors that the Wendlings had done for him, such as helping to keep him out of jail, and extending loans to him. At this juncture, Richard said, "Well, if a union gets in here we'll no longer be able to help you, to help people in that manner of making loans . because we won't be able to afford it." Howard then began a discussion as to what contract terms, including wages, the Union would insist upon. In this connection, Howard said that "if the Union come in here, [Respondent] would have to do away with the bindery because [Respondent] can't afford to pay the girls union scale, that [Respondent would] ship all [its] work out to binderies to be done," that, "as far as the multiliths is concerned [Respondent does not] make any money on them and [Respondent could not] afford a union pressman on them and [Respondent would] have to do away with that part of [its] job," and that, "as far as the letterpress goes, [Respondent] just keep[s] it here to satisfy [its] customers, and [it will] have to do away with it." Wells also atrributed to Richard the remark that if the Union came in "he would take the night shift and do away with it and bring them guys up on the day shift, and let go the people they didn't need, that they could not afford two shifts." Both Howard and Richard Wendling testified concerning this interview but differed with Wells in many substantial respects. Howard testified as follows: Wells came into the office "quite in a huff," wanting to know what Richard and he were trying to do by these interviews, and adding that the employees want to see the Wendlings in a group. His reply was that he had never seen anybody in a group and did not intend to do so at this time and that he intended to talk to each and every individual in the shop that day. Wells continued by saying that, as to not being able to pay more salary, the employees wanted to see the Company's books and they would prove that the Company was able to pay. His retort to this was that he would deny them a look at the books. Richard then mentioned that the employees would be making more money if waste could be cut down and that the Wisconsin plant, where Wells and he went concerning a press , went out of business because of some union problems. Wells then tried to show them a typical union contract and added that under it the union scale would be attained over a period of time. His response thereto was that he did not want a union in the plant and that, if Wells felt the need for a union, he should go out and get another job and he could do so on company time. Wells refused this suggestion and returned to the subject of having a group discussion between the employees and Respondent, which he again turned down. At this point, Richard said, "Joe if this goes through you're really going to make a fool of me, . . after all that I've done for you, "mentioning specifically, in this connection, loans to Wells and efforts in his behalf which resulted in keeping him out of jail. In addition to the above, Howard testified that he did not, nor did Richard, to his knowledge, say to Wells that, if the Union came in, Wells would not get any more loans or that he would not continue giving loans as he could not afford to do so. Howard further denied that either Richard or he made any statements as to the fate of the bindery, multilith and letterpress operation if the Union came into the plant. The testimony of Richard Wendling was less extensive than Howard's but was corroborative in most respects of Howard's testimony with respect to what transpired during the interview. Like Howard, he denied that either Howard or he made any of the remarks attributed to them concerning future loans or concerning the fate of the bindery, multilith, and letterpress operation if the Union came into the plant. While there are marked differences between Wells, on the one hand, and Howard and Richard Wendling, on the other hand, as to how the interview began and as to the topics covered, it is apparent from the conversation of all three that the main thrust of the interview as far as the Wendlings was concerned was to dissuade Wells from his union activity. In this regard, it is clear from the testimony of all three of them that past favors in the form of loans and of assistance to Wells when he was in difficulties with the law on personal matters were given considerable emphasis. It is, however, the burden of the testimony of the Wendlings that they did not, in seeking to alter Wells' attitude about the Union, refer to whether there would be any changes in these past favors and assistance should the Union come into the plant. However, the logic and probabilities of the situation plus the fact that Wells impressed me as testifying more reliably in this regard than did the Wendlings, persuade me, and I find, as Wells testified, that Howard Wendling threatened that loans to Wells would stop if the Union came into the plant. It is also evident from Howard Wendling's testimony that they discussed with Wells the union situation at a plant in Wisconsin which had been visited several months before by Richard and Wells in connection with the purchase of a press by Respondent, and that Richard commented that the employer in question went out of business because of union problems. Here, too, the logic and probabilities of the situation, plus the more reliable testimony of Wells, persuade me, and I find, that the Wendlings did press this matter further and threatened, as Wells testified, a closing down of certain of its operations should the Union come into the plant. Accordingly, I find more specifically, in accordance with the testimony of Wells, that Howard Wendling threatened that, if the Union came into the plant, Respondent would close the bindery, and would do away with its multilith and letterpress operations. And I find further, in accordance with the uncontroverted testimony of Wells, that Richard Wendling further threatened that if the Union came into the plant, Respondent would eliminate the night shift. As heretofore indiciated the last of this series of interviews was with employee Lohrum. Lohrum, who was not part of the prounion group of employees, did not testify and the Wendlings were not interrogated WENDLING PRINTING COMPANY 551 concerning the interview. There was one further development connected with these interviews, however. Wells came back into the office right after lunch that day, just as Lohrum was leaving. According to Wells, he then told the Wendlings that they had "cut [their] throats" as to "[his] trying to talk the Union out of [the plant]," explaining that he had learned from talking to the employees that two of them had been offered more pay during their interviews. Also according to Wells, although he did not identify these two employees, Howard then said, "Well, we didn't offer Jerry Gifford no half dollar on the hour or receiving more money every so often." Both Wendlings testified, in respect to the above, that Wells did accuse them of offering raises to interviewees, but they denied that any names were mentioned by them in replying to Wells. According to Howard, he denied the charge and pressed Wells for the name of the person but Wells refused to identify him; in addition, he insisted that there was a misunderstanding and urged Wells to ask the employee in question to come and see him and he would clear the matter up, but nothing eventuated. Richard Wendling's testimony was substantially to the same effect. It would appear that the General Counsel adduced this testimony by way of reinforcement of his position that Howard Wendling did offer Gifford and others wage raises during their interviews that morning. However, whether such an offer was, in fact, made, is more properly predicated upon what occurred during the interview itself, as to which there is ample evidence in this record. Further, I have already found that a raise of 50 cents an hour was offered to Gifford and that the prospect and probability of a raise was held out to Saylor and to Bezold during these interviews. Accordingly, I need not, and do not, make any findings with respect to the above. 3. Other conversations between management and employees on June 26 The General Counsel adduced mutually corroborative testimony by employees Lora Sizemore, Rosalie Hammond, and Cora Glahn to the effect that Dan Ziegler, the foreman of the bindery, approached them as they were standing at the time clock and were clocking out for lunch on June 26 and singled out Glahn and cautioned her not to listen to Sizemore and Hammond or she will be out on the street with them. As to this, Ziegler admitted saying to Glahn, "You'd better stay away from them or they'll have you out on the street with them." According to Ziegler, Glahn did not answer but he and the girls all laughed, and he thought that they took it as a joke. Since the Union was not mentioned and since Ziegler's testimony that they all laughed when he made this remark stands unrefuted on the record, I am unable to find that, by Ziegler's aforesaid remark, Respondent exceeded permissible bounds and violated the Act. There is, in addition, testimony by Glahn that, on June 26, Richard Wendling approached her at her work table in the bindery and started a discussion about her sister, Mary Sprott, who was out on sick leave at the time. According to Glahn, Richard then said, "You know, we've been good to your sister since she's been sick an awful lot, and we pay for her . . . we get her insurance and we pay for her, and if the Union got in, why . . . we've been pretty good to her." At this point, also according to Glahn, Richard walked away without finishing the sentence. Richard Wendling admitted having such a conversation in which he called attention to the insurance benefits, under Company policies, that her sister was receiving, but he denied that he mentioned the Union during this conversation. In view of the facts that Richard Wendling raised the matter of insurance coverage of Mary Sprott with Glahn, that Glahn impressed me as a more credible witness than Richard Wendling, and in the light of the evidence herein of a campaign by representatives of management to dissuade employees from affiliating with the Union, I find that Glahn's testimony accords with the inherent probabilities of the situation and that Richard Wendling did mention the Union. And while Richard Wendling did not complete the sentence in which he mentioned the Union, I find that the innuendo was unmistakable that he was threatening that, if the Union came in, such benefits to Sprott, and others similarly situated, would be adversely affected, and I so find. The record also discloses that Ziegler approached Wells during the afternoon on June 26 and expressed amazement that Wells was engaging in union activity and sought to dissuade him therefrom. According to Wells, Ziegler referred to the fact that Respondent was "over heels in debt with this new building and this new press they bought" and could not afford a union . Wells also attributed to Ziegler a statement to the effect that Respondent would have to curtail its operations by eliminating the bindery and other parts of the work and would have to go back to being a small shop. Ziegler acknowledged having a conversation with Wells in which he upbraided Wells for his union activity in the face of what the Company had done for Wells. He also acknowledged that he had already heard, at the time, that Wells "was the leader of this movement among the employees to try to get a union into the shop," and that he was angry because of it. However, he denied mentioning to Wells the Company's indebtedness and saying that the Company could not afford a union or that the bindery etc. would have to be eliminated. I note, too, that during cross-examination, Ziegler varied from the above testimony by admitting that he told Wells, during this conversation, that he could not fathom how Wells "could be in on this thing, much less lead it, something that could lead to the destruction of the Company." In all these circumstances, including the fact that Wells impressed me as a more reliable witness than Ziegler, I credit Wells and find that Ziegler did threaten Wells that Respondent would substantially reduce its operations, including the elimination of the bindery, if the Union came into the plant. The record also discloses uncontroverted testimony by Saylor that James Brauch, the production manager, approached him that same afternoon and reproached him by asking why he was "a traitor," that Wendling had trained him to do a job and now he "was going to try to hurt them." Also according to Saylor, Brauch said that the Union would probably benefit him "but there was other people in the shop that it was going to hurt." I find, on the basis of this undenied testimony, that the conversation occurred in the manner testified to by Saylor and that Brauch threatened, in effect, that, if the Union came into the plant, employees would be hurt or disadvantaged thereby. 4. Developments on June 27 As already found, Howard Wendling made an unprecedented telephone call to employee Garvin Chandler at about 1 o'clock in the morning on June 27. Chandler testified as follows in this connection: Howard 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wendling inquired as to who had signed union cards and whether he had signed. He told Howard that he had signed . Howard inquired further as to who the instigators of the Union were, and mentioned the names of Wells and Gifford in that connection, saying that these two employees "would be eliminated from employment sooner or later." At this point, Howard mentioned the name of Dale Lohrum, the main papercutter in the bindery, and spoke "of his intention to get in touch with Lohrum, adding that it was up to us whether the Union went in or not," and that the union cards did not mean much. Also during this conversation , Howard proposed that he quit his job and said, in effect, that he, Howard, would make it up to him. With respect to the above, Howard Wendling gave the following version: He apologized to Chandler for calling him "so late," and explained that he was calling because he heard that Chandler wanted to get back the union card that he had signed . When Chandler answered that he did, he inquired as to who had Chandler's card and learned that Wells had the card. Whereupon, he indicated that Chandler could ask Wells to return it, but he was positive that Wells would not do so. Also according to Howard, he expressed surprise at Chandler's interest in the Union and asked whether Chandler's "sudden interest" was due to him or the Company. At this point, Chandler mentioned that he was unhappy over the fact that he was no longer driving a truck for Respondent but was now working on the papercutter and the folding machine, and blamed Ziegler for his predicament. Chandler acknowledged being remiss in not telling him , Howard, about it, and he, in turn, indicated to Chandler that he could not promise anything at this time. The conversation ended with Chandler mentioning something about going to ask Wells for his card back "tomorrow." Howard Wendling denied saying that Wells and Gifford would be eliminated sooner or later. As to Chandler's testimony about quitting his job, Howard testified that Chandler said at one point that the best thing he, Chandler, could do was to quit his job , and that his reply was that there was no reason for Chandler to quit and that he did not want Chandler to quit. Howard admitted saying to Chandler, in this connection , "one vote really could mean the election." According to Chandler's uncontroverted testimony, the aftermath of the above was a telephone call from Howard Wendling over the "intercom" in the plant the same morning in which Howard said to him, "Whatever you do, don't quit, Dick Wendling and I will get in touch with you later." Whether or not Howard Wendling sought to get Chandler to quit his job and then changed his mind about 9 or 10 hours later, or whether Chandler initially thought it best to quit in the circumstances and Howard tried to dissuade him need not be decided here . However, the fact that there was any talk of quitting strongly suggests, and I infer, and find, that Howard Wendling, during this unprecedented call so late at night to talk about the Union, put inordinate pressure on Chandler to disassociate himself from the Union . Indeed, he admitted expressing to Chandler his surprise at his interest in the Union, admitted that the purpose of his call was to discuss with Chandler the matter of getting his card back and volunteered that he said to Chandler "one vote really could win the election." In view of this, and since Chandler' s testimony impressed me as being more forthright and reliable than that of Howard Wendling," and since Chandler's testimony is more consistent with the probabilities of the situation, I credit Chandler in all material respects herein. I therefore find that, during this conversation on the telephone, Howard Wendling interrogated Chandler as to his and other employees' union activity, threatened the termination "sooner or later" of Wells and Gifford because of their union activity, and urged Chandler to disassociate himself from the Union and join Respondent in opposing it. Chandler testified further that he also had a conversation in the plant with Ziegler, his foreman in the bindery, on June 27 at about 11 a.m. According to Chandler, Ziegler said to him that he hoped that the Union would not get in because if that did happen, Respondent would have to close the bindery and send the bindery work out and that Respondent was financially unable to take a union at this time. Although Ziegler denied making these remarks, I am persuaded from my findings herein that Ziegler made similar remarks to other employees, and from the fact that Chandler was a more reliable witness than Ziegler, that Ziegler did threaten Chandler that, if the Union came in, Respondent would close the bindery. According to employee Gifford, Ziegler engaged him in the following conversation concerning the Union on or about June 27. Ziegler approached him at his press and said that he had heard of the union activity and that "if [he, Gifford] ever got in a union shop, they'd probably lay [him] off and he'd never be able to get a job in a union shop ... because they'd just lay you off and they wouldn't call you back." Ziegler said also, according to Gifford, that the employees were kind of stupid for wanting a union as the employees would not accomplish anything and "they would probably have to do away with other departments." Ziegler, in turn, denied each of the remarks attributed to him by Gifford. As to the foregoing, while I credit Gifford rather than Ziegler, I find Gifford's testimony as to Ziegler's remarks concerning what would happen if he, Gifford, ever got in a union shop, too ambiguous to warrant a determination as to whether Ziegler was predicting how Gifford would fare in a union shop because of his job qualifications or whether Ziegler was insinuating that Respondent would effect Gifford's layoff in retaliation for his union activity. In these circumstances, I am unable to find that this statement contravened the Act. However, Ziegler's statement concerning the probability of doing away with other departments, if the Union came in, does exceed permissible bounds. I find that Ziegler did thereby seek to instill fear in Gifford that the advent of the Union would cause a partial closedown of operations to the detriment of the employees. The record discloses that Ziegler had a conversation concerning the Union with employee Hammond, in the presence of employees Sizemore, Glahn and Oliver on or about the same day." According to a composite of the testimony of Hammond and Sizemore, Ziegler spoke to Hammond near one of the tables in the bindery and said that he knew that five girls had signed union cards. Whereupon, Hammond inquired as to how Ziegler knew this and Ziegler indicated that he had proof of this, and "I have heretofore credited Chandler as against Howard Wendling with respect to the time of the telephone call to Chandler's home. "Ziegler fixed the date of a union -related conversation with Hammond and either Glahn or Sizemore during the middle of the week of June 24 Hammond fixed the time as either Thursday or Friday, June 27 or 28 Sizemore designated the time as during the week before the strike. I am persuaded, and find, that a reconciliation of the above testimony points to June 27 as the approximate date, and I so find WENDLING PRINTING COMPANY 553 indicated further either by speech or conduct that such proof was in the office, if Hammond was interested. However, Hammond would not go to the office. Ziegler also said, at the time, according to Hammond, that, if the Union got in, Respondent would shut down the bindery, while Sizemore had Ziegler saying that if they went through with their plans, they would "be in trouble." According to Ziegler, Hammond and either Glahn or Sizemore approached him on this occasion and inquired about how to get their signed cards back from the Union and he replied that he did not think they could, nor did he think the cards meant anything unless they wanted to go out on strike. Ziegler specifically denied each and every one of the above attributions to him by either Hammond or Sizemore. Under all the circumstances, I find more persuasive the mutually corroborative testimony of Hammond and Sizemore than that of Ziegler, and I credit them. Accordingly, I find that Ziegler created the impression of having engaged in surveillance by the reference to his knowledge concerning who signed cards among the girls in the bindery, and that he threatened them that, if the Union came into the plant, it would be to the economic detriment of the employees in the bindery. 5. Developments on June 28 The record discloses that James Brauch, the production manager, had a conversation with employees Bezold, Gifford, and Sexton about the Union on or about June 28." Bezold and Gifford gave mutually corroborative and uncontroverted testimony16 to the effect that Brauch said to the group that, if the Union got in, Respondent would probably cut out the letterpress and the bindery because they were costing more money than they were making and that the letterpresses were there mainly to satisfy customers and not as moneymakers. I credit this undenied testimony, and find, that Brauch did threaten that the advent of the Union would cause Respondent to cut out the letterpress and the bindery. According to employees Chandler and Hammond, they had separate conversations with Ziegler on June 28 concerning the Union. According to Chandler, Ziegler spoke to him at the papercutter and said that "he wanted to see the whole thing go all the way through the whole procedure, that he wanted the people who were trying to form the Union to learn their lesson." Ziegler, in turn, recalled such a conversation during the week of June 24 with Chandler, but said that it was precipitated by Chandler's inquiry as to whether he should quit because he was involved in the union movement or whether he was going to be fired, and by Chandler's apparent downhearted attitude. Whereupon, he told Chandler not to quit and said that, "nobody will win this thing no matter which way it goes. We'll all learn a lesson from it," and Chandler did not respond. With respect to the other incident, Hammond testified that Ziegler spoke to her at one of the bindery tables and said that if the Union came into the plant, Respondent would shutdown the bindery and Respondent would need only three girls. As to this, Ziegler denied having a conversation with Hammond on the day in question and denied Hammond's attribution to him. As to the first mentioned conversation, I am satisfied that Chandler rather than Ziegler testified credibly and that Ziegler, through the remarks attributed to him by Chandler, made a veiled threat that employees would be adversely affected in their employment because of their union activity. And I find further, in accordance with the credible testimony of Hammond, that Ziegler spoke in the same vein to her and threatened the bindery employees with the loss of their jobs through the shutting down of the bindery, should the Union succeed in organizing the employees. 6. Developments on June 29 According to employee Hammond, she was working on the folding machine for the first time by herself on June 29, when Ziegler approached her and inquired whether she knew how to load the machine. To her answer that she did not know, Ziegler replied with, "Well, union girls does. If you get in the Union you'll have to operate the machine from both ends." Although Ziegler denied that he had such a conversation with Hammond, I do not credit his denial. However, I am unable to find, on the basis of Hammond's credible testimony, that the remarks which she attributed to Ziegler were more than a prediction of what the standard skills of bindery employees are in union shops. Accordingly, I find that these remarks of Ziegler did not exceed permissible bounds. There is uncontradicted testimony by Glahn that either on June 27 or 29, Richard Wendling spoke to her while she was working on the cutter and pointed to a folding job done by employee Hammond" and said that, if the Union came into the plant, such work "would be throwed out and you'd get fired for it." I credit this uncontradicted testimony and find that Richard Wendling thereby threatened more onerous working conditions if the Union was successful. Employee Sizemore testified that, on June 29, she overheard Richard Wendling say to employee Shirley Black that, "if the Union goes through I think I'll go into the brokerage business and you can come along if you want to." Employee Glahn also testified that she overheard this conversation between Richard Wendling and Black. However, her version was that Richard said that if the Union got in, the Company would close down the bindery and go into the brokerage business and that he would take Black with him. Richard Wendling, on the other hand, categorically denied having such a conversation with Black . In view of the differing versions of Sizemore and Glahn, particularly in that there was no direct or implied threat of a bindery shutdown in Sizemore' s version whereas there was such a direct threat in Glahn's testimony, and since I find that Sizemore's version of what Richard Wendling said falls short of constituting a threat of a shutdown because of the Union, I am unable to find that the evidence preponderates in favor of a finding that, by Richard Wendling's remarks to employee Black, he either directly or indirectly threatened a bindery shutdown because of the Union. 7. Developments after the end of the strike (which lasted from July 1 to 23) until the time of the election on August 6 "Bezold fixed the time as "a couple of days" after his interview on June 26 Gifford placed the conversation on the day of his interview "As already indicated, neither Brauch nor Sexton appeared as witnesses herein "In view of Hammond's credible testimony above that she first began to operate the folding machine on June 29, I find that this conversation occurred on the latter date 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a. The accident at the press which was being operated by employee Gifford Sometime between July 24 and August 6, upon his fulfillment of his summer camp training in the Army Reserves, Gifford returned to work in the pressroom. His assignment was not to his own press but employee Wolz's cylinder press in order to relieve employee Wolz who was about to go on vacation. Gifford was not too familiar with the inking procedure on a cylinder press, having previously substituted only occasionally for Wolz on this press. Gifford started to operate the press and was inking the cylinder while the press was running . In doing so, the ink knife got caught in the roller causing damage to the cylinder rollers. As Gifford and Wolz were trying to remove the knife, Howard Wendling approached them to see what had happened. Thereupon, according to Gifford's credible testimony, the following occured: Howard inquired and learned from Wolz what the damage was and then said to him, "what else are you guys going to do to screw up the pressroom?" He was at a loss as to what to say. Howard left at this point and came back a few minutes later with his brother, Richard, and said to him, "Jerry, I feel it only fair to warn you that if anything happens like this again we're going to have to take further disciplinary action." His response was "OK," and the conversation ended. A little later he spoke to Howard and Richard Wendling and inquired why his making a mistake suddenly means the loss of his job, when he and others have made mistakes before without being told that. At this, Richard started talking about another incident in the plant at an earlier date , as to which he disclaimed having any knowledge. Richard then spoke about some cleaning up activity by employees before the strike and said, "How come all of a sudden you guys want to start cleaning up and making it look better . Is it because you knew you were going out on strike with the Union." The conversation ended with his denying the imputation. Also according to Gifford, Howard may have said to be more careful in the future . As to the foregoing , Howard Wendling testified that he approached the cylinder press at the time of the accident and learned what had happened and that the extent of the damage would not be known until the rollers were removed . He thereupon said to Gifford, "Jerry, I'm paying you to hold onto the ink knife, not to drop it into the ink rollers . What else are you guys going to do to mess up things around here?" Howard testified also that he did thereafter say that if something similar happened again, he would take the necessary disciplinary action; and he acknowledged that there was a further conversation later when Gifford approached him. In the latter conversation, according to Howard, Gifford protested to him that this was an accident; and he, in turn, replied that there had been too many accidents, but then said, "Let's just let it go at that if you say it was an accident and let's be more careful." It was also Howard's testimony that there was no mention of the Union or of the strike during this episode. Wolz did not testify in this proceeding and Richard Wendling was not questioned about his part in this episode. Absent Richard's denial that he was present and made reference to the Union and to the strike, and in the light of Howard's veiled reference to the Union in admittedly saying to Gifford, who was a known union adherent, "What else are you guys going to do to mess up things around here?," and under all the circumstances of the case, I am persuaded, and find, that the implication was unmistakable that Gifford was being charged with deliberately causing the accident as part of his prounion activity. However, as this entire incident was triggered by Gifford's accident; as Howard Wendling's above quoted outburst was, I find, borne of his frustration when confronted with the damaged press; as the warning to Gifford that he would be disciplined if another such accident occurred loses much of its force when measured against Howard Wendling's statement to Gifford shortly thereafter to be more careful in the future; as there is no record basis for concluding that this warning was a significant departure from what Respondent has done in similar circumstances before the advent of the Union, I conclude, and find, that the evidence does not preponderate in favor of a finding that Howard Wendling threatened Gifford with more onerous working conditions in the future because of his union activity. b. The conversation between employee Wells and Bindery Foreman Ziegler about further earnings Wells testified, and Ziegler, in effect, denied, that about 2 or 3 weeks after the strike was over but before the election, Ziegler spoke to Wells at his press and said that "the Company was going to give [the employees] what [they] wanted without the Union being in there if the Union didn't make it . . . that the shop was going to be set up just like a union shop." According to Ziegler, this conversation began when Wells called him over to Wells' press and told him how many votes the Union had already. To this, he answered that he did not believe what Wells said . During the conversation , also according to Ziegler, Wells said that employees were not getting enough salary and that things were going to be better salary-wise for the employees as the result of the Union, and he replied, in turn, that the Company has been working on a set of rules for 2 years and that everybody was going to be better off." I am cognizant of the fact that I have heretofore found that Wells is a more credible witness than Ziegler. However, in view of the fact that Wells' account of what occurred during this conversation fails to disclose what remarks by either of them led up to, or followed, the critical statement which he attributed to Ziegler;" as I am convinced, and find, under all the circumstances and on the entire record, that more was said by each of them on that occasion; and as the attribution to Ziegler, which Ziegler denies, is not entirely inconsistent with a prediction by Ziegler that the employees would fare as well with a union as without one, I find that the evidence does not preponderate in favor of a finding that Ziegler made remarks which contravened the Act during this conversation. c. The conversation between employee Gifford and Ziegler shortly before the election Employee Gifford testified that he had the following conversation about the Union with Ziegler prior to the election:" Ziegler said that " [the employees] were stupid 'There is uncontroverted testimony by Ziegler that, at the time Respondent "embarked into a profit sharing plan" for its employees, it submitted, along with the literature to its employees explaining the plan, a letter from Howard Wendling saying that a set of rules and regulations were being worked on. "Wells admitted that Ziegler talked to him about rules and regulations at the time. 'Gifford fixed the time as the day before the election, during direct examination by the General Counsel, and as a "couple days" before the election, during examination by counsel for the Charging Party. WENDLING PRINTING COMPANY 555 for even thinking about going and getting a union; . . . it wouldn't do [them] any good, and they would end up losing their jobs in the end, that the only qualified pressmen were the ones that stayed inside, the ones that went outside probably couldn't even get a job in a union shop, they weren' t good enough to." His response was to just laugh a little bit. As to the foregoing, Ziegler could not remember any conversation with Gifford in which he told Gifford any of the above. Here, too, while I am convinced, and find, that Gifford was a more reliable witness than Ziegler and I credit Gifford, I am unable to find that the above remarks of Ziegler to Gifford added up to interference with the election, as the General Counsel and the Charging Party contend." Viewed in its totality, Ziegler was telling Gifford, in substance, that the pressmen , including Gifford, were acting stupidly in wanting to establish a union shop as they did not have the qualifications required of union pressmen; and he was predicting that, if the plant were unionized, they would not retain their job status as . pressmen in consequence of union , action . As such, these remarks were, I find, no more than a resort to permissible persuasion during the preelection period. d. The conversation between employee Saylor and Richard Wendling on the day before the election According to employee Saylor, Richard Wendling came up to him in his work area about 15 minutes before quitting time on the day before the election and said, "Jess, you remember the time that I talked you out of the camera job?" To his affirmative answer, Richard then said, "well, I guided you right then and I'm going to guide you right now and if you don't do it you are going to be sorry about it." As to the above , Richard Wendling recalled talking to Saylor about the camera job on the first pay day or second pay day after the strike ended." Saylor had theretofore filed a petition in bankruptcy and had not listed Respondent as a creditor. According to the testimony of Richard Wendling, he then brought up Saylor's bankruptcy and Saylor said that he wanted to do right by the Company." To this, he commented that Saylor had once wanted a camera job in the plant and he talked Saylor into getting into the stripping department instead. Whereupon, he asked if Saylor was ever sorry for doing so and Saylor said , "no"; and the conversation ended. In addition, Richard Wendling specifically denied sayings in substance, that if Saylor did not follow his advice now, he, Saylor, will be sorry. I am satisfied, and find, that the conversation in question occurred, as Saylor testified, on the day before the election . I find further that the logic and probabilities of the situation support, the testimony of Saylor that the discussion of the camera job postdated the conversation between Richard Wendling and himself about his petition in bankruptcy." In all these circumstances, and in view of the numerous instances herein in which I have not credited Richard Wendling's testimony, I credit Saylor and find 'The complaint, as amended, did not allege that Respondent had violated the Act by these remarks of Ziegler. The General Counsel, in recognition of the above, indicated that he was not seeking an unfair labor practice finding with respect to the above but was , instead, urging it as one of the grounds for setting aside the election herein. 'The second pay day would appear to coincide approximately with the time fixed by Saylor for this conversation. "However, according to Saylor, the conversation relating to his bankruptcy occurred on Friday morning , July 26. that the conversation occurred in the manner testified to by him . However, as Richard Wendling did not mention the Union or the impending election to Saylor during this conversation, and as it does not appear that Ziegler then gave Saylor any advice concerning the Union or concerning how to vote in this election , the above attribution by Saylor to Richard Wendling is too ambiguous to constitute a threat that Respondent would penalize Saylor for continuing to support the Union. Accordingly, I find that Respondent did not, by this remark of Ziegler, exceed permissible bounds under the Act. e. The alleged changes in working conditions in the plant after the strike with respect to (1) the playing of the radio in the preparation department , (2) furniture in the ladies lounge, (3) employees receiving telephone calls in the plant, (4) coffeebreaks, and (5) bindery girles picking up work _ . s presses I -t With respect to (1) above, all that appears is the uncontradicted testimony of employee Saylor that, on the day the striking employees returned to work, employee Ed Dalton turned on the radio in his department as employees had a right to do before they went to strike. He thereupon went to the radio in order to adjust it, when Ralph Wendling told Dalton and him to turn off the radio. Saylor testified that this was the only time he was told to turn off the radio and that he plays the radio in the plant "nowadays." On this state of the record, I am unable to find that Ralph Wendling ordered the radio turned off this one time in retaliation for their strike activity. As to (2), there is testimony by employees Sizemore and Hammond that there were additional lounge chairs and some additional pieces of furniture in the women's restroom after the strike. However, I note, in this connection, that Hammond testified that this additional furniture had been stored in the restroom since "a long time ago," in a folded-up state together with some other things, and nobody had tried to use the furniture, although no supervisor ever told her not to use this furniture before the strike. In these circumstances, I am unable to find that the evidence preponderates in favor of a finding that these changes in the women 's restroom were in any way related to the recent strike activity by employees connected with the Union. As to (3), Wells testified that, before the strike, Company practice was that if someone, like a wife or mother of an employee, telephoned the plant in order to speak with that employee, office personnel would call the employee involved on the "intercom" and tell him to pick up a telephone line. Wells testified further that, after the strike, Richard Wendling told him that nobody would receive "any more telephone calls in there and that they would give you a message"; that, after this, he received from Ralph Wendling , another Wendling brother, only relayed messages as to the content of the telephone call for him, except for the one telephone call he received directly on the Saturday before the instant hearing. It was also his testimony that employee Dale Lohrum, who did "Indeed, if as Richard Wendling testified, Saylor had already remarked, in effect, that he wanted to do right by the Company and therefore did not list it as a creditor in his bankruptcy petition , there would appear to have been no need for Richard Wendling to reinforce Saylor's action by reminding Saylor of what had happened when Saylor sought the camera job. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not go on strike, continued to receive telephone calls in accordance with prior company practice , as did employee Charlie Ballard and Al Roser . In contrast to the above, was the testimony of employee Sizemore, during direct examination by the General Counsel, that she had personally received two telephone calls before the strike and "maybe one or two" after the strike. There is also testimony by employee Vera Rottinghaus, during cross-examination by the General Counsel, to the effect that before the strike she would use her own judgment as to whether, in light of the work situation in the plant, a telephone call, which she received initially, should be transferred to an employee; that she has not changed the practice since the strike; and that no supervisor ever gave her instructions not to let calls go through. In all these circumstances, I am unable to find that the evidence preponderates in favor of a finding that there was, in fact, a change after the strike in Respondent' s practice with respect to handling incoming personal telephone calls to its employees, insofar as they were for employees who had been on strike. As to (4), the record establishes that, before the strike, coffee breaks among the bindery girls occurred irregularly, i.e. when a canteen truck visited the plant , either floorlady Cora Hummel asked Bindery Foreman Ziegler for a 10-minute break for the bindery girls and Ziegler would order one, or Ziegler would order such a break, on his own. Employees were, however, allowed to get coffee, sandwiches and soft drinks during the day and to consume the food at their respective benches . During the stike, however, Ziegler initiated two regular breaks in the bindery, one at 10 a .m., and one at 2 p.m., because, as he testified, Respondent had hired a bunch of people of school age in the bindery during the strike and he considered it expedient, due to the number of inexperienced people, to have them all leave the job for break and get them back from break at the same time. Thereafter, also according to the testimony of Ziegler, when the strikers returned to the bindery and he then had these experienced or semiexperienced employees who could work without any supervision , he divided the morning break into two 10-minute breaks and similarly divided the afternoon break so that, while some employees were on break, he could still keep the machinery and jobs going because of the available experienced employees. The burden of the General Counsel's position is that Respondent directed those employees who had been on strike to take their 10-minute breaks as a group separately from the others, so that, in practice, during the period until the time of the election , union personnel were separated from nonunion personnel during break time. In this connection , while there is testimony by employees Hammond and Glahn that Floorlady Cora Hummel called off to them the names of those who were to go on break as one group, naming only those bindery girls who had struck, and there is testimony by Wells that he observed on many occasions prior to the election that the union personnel in the bindery went on break separately from the nonunion personnel, it is noteworthy that employees Sizemore and Glahn corroborated the testimony of Ziegler, their foreman, that when he first told the employees, after the strike, about the 10-minute scheduled breaks, he made no mention of specific groupings of employees for taking breaks. Thus, Sizemore quoted Ziegler as saying, "Girls, you'll have a break now, a 10-minute break . I don't care how you take it or who you take it with, but you'll have a 10-minute break, one in the morning and one in the afternoon." And Glahn testified that "Ziegler didn't say that we had to go with anybody special, or anything. He just gave us the times." Noteworthy, too, is the credible testimony of employee Anne Simon, who was hired during the strike, that when the employees were told about the practice of taking breaks, the union girls went first in a group without anybody saying anything, that she was never instructed by any of her supervisors as to the ones with whom she could take her breaks, and that, at the beginning, the girls who had been on strike did not mingle with the other girls in the bindery. In this connection, Glahn testified that nonstriking employees Sweeney and Simon began, after a while, to take their breaks with the girls who had struck and this started "just a little bit before the election." In all these circumstances, including the fact that the logic and probabilities of the situation support a conclusion that those employees who struck would, by personal preference, at least for a while after the strike, want to go on break with other ex-strikers, and the further fact that, if Hummel did direct the ex-strikers to go on break in one group, it was contrary to what her supervisor and the supervisor of the bindery had himself announced to the employees, I am unable to find that, after the strike was over, Respondent caused its bindery girls who participated in the strike activity to be separated from the nonstriking bindery girls when they took their two 10-minute breaks each day, thereby discriminatorily applying its rule relating to the taking of breaks. As to (5), employee Hammond testified that the practice before the strike in those instances where a bindery girl ran out of work was to allow the bindery girls to go back to the press room to inquire about available work and to pick up what might be ready. She testified further that this practice changed only with respect to union personnel in the bindery a couple of days after the striking bindery employees returned to work. On one occasion, according to Hammond, she and two other girls, who had been on strike, were standing near the cutter waiting for him to finish some work and Ziegler told them not to go to the press room any more looking for work, that work would be brought to them. Hammond testified further that she did not know whether Ziegler gave the same instructions to the other two bindery girls who had been on strike and to other girls in the bindery, :s but she has since then seen some of the new girls and some girls who had not been on strike go to the cutter looking for work and she has not seen any supervisor stop them from doing so. In contrast to the above, employee Sizemore testified that, after the strike, Ziegler "didn't single out any particular ones, he told the people in the bindery" about the changes in procedure, namely, that they were not allowed in the press room anymore. There is also testimony by employee Simon that she and other bindery girls would go to get bindery work from the cutter only if told to do so by a supervisor, and on those occasions if the cutter "was waiting to cut it," they would return to their work stations and the cutter would send the work to them. Ziegler' s testimony in this regard was that the usual procedure, when a bindery girl runs out of work, is to have the bindery girls wait until somebody brings her work and that the exceptions occur on an average once every 2 or 3 days because of a "rush job"; in the latter "Employee Glahn testified substantially to the same effect, but placed four employees in the group instead of three , and identified them as Sizemore, Sprott, Hammond, and herself. WENDLING PRINTING COMPANY 557 instances he will send one of the girls to the letterpress department or the offset department or to the cutter to find out where the job is and to bring it back if it is a small job . Ziegler also testified that, after the strike, he had two conversations with bindery employees about procedures to be followed in getting work . He placed the first of these conversations on July 26 or 27 near the letterpress department at Gifford's press and the other, a few days later, at the place of work of Dale Lohrum, the cutter. As heretofore shown, Hammond and Glahn testified only as to the latter . During both these conversations, according to Ziegler, the bindery girls present were Hammond , Sizemore, and Sprott. According to Ziegler, during the first conversation he saw the three bindery girls talking to Gifford and asked them what they were doing there. To their answer that they were looking for work, he rejoined with , "Well, when they get the jobs printed they'll bring them back to the bindery." Employee Gifford, during his testimony verified that there was such an incident involving employees Hammond and Sizemore who came to his press either together or separately looking for work . In this connection, Gifford explained that the usual procedure before the strike had been for him to take his work, after he was finished with it, back to the bindery girls and only once in a while would one of several people pick it up. According to Gifford, on the occasion in question, Ziegler told Hammond and Sizemore not to bother the pressmen . With respect to the second conversation, Ziegler testified that he noticed the same bindery girls standing near Lohrum and talking to him, and,upon inquiring and learning from them that they were waiting for work, he told them to go back to their work area and Lohrum would get the work to them when he had it cut. It is apparent from all the foregoing that all that is involved here is a request to several employees who were away from their work stations looking for work not to stand by at another work station to pick up work but to go back to their own stations and the work would be delivered to them . While it is contended that the bindery girls who had struck were singled out for this treatment, doubt is cast thereon by (1) the testimony of Sizemore that Ziegler's instructions in this area were , in effect, given to all bindery employees alike , i.e., without regard to whether they had engaged in a strike or not; (2) the testimony of Simon that she and the other bindery girls were under the same restraints unless specifically instructed to go get some work; (3) the testimony of Gifford that the usual practice was for him to take the work to the back, after he had finished putting it through the letterpress; (4) the apparent reasonableness of Ziegler's directions in these two instances to the employees involved; and (5) the fact that the employees in the bindery work at an hourly rate and receive no bonus on the basis of production. Accordingly, I am unable to find that the evidence preponderates in favor of a finding that Respondent imposed different working conditions upon bindery employees who had engaged in the strike from those who had not been on strike. An incident involving employee Glahn and Richard Wendling and occurring shortly before the election held in Case 9-RC-7801, has some relevance here ." It is not disputed that Glahn was at the time away from her desk in connection with her work and had stopped to talk to her sister, Mary Sprott, when Richard Wendling approached Glahn and ordered her back to work. While there are testimonial disputes between Glahn and Richard Wendling as to whether Sprott was crying at the time when Glahn approached her, whether Richard Wendling then accused Glahn of running around the plant , and as to whether one or both of them used profanity during their conversation and in what order, I find it unnecessary to resolve these matters, because the claimed thrust of the incident, so far as relevant herein , is that the treatment accorded Glahn revealed a change of working conditions in the plant in consequence of the union activity. In the latter connection, Glahn testified that she has worked throughout the plant before and Richard Wendling has seen her but has never commented in the way he did in this instance, that no supervisor ever told her to go back to her job before when she was away from her desk, and that, in such instances, they asked only if she needed help or anything. Assuming, without deciding, that this was so, I would not attach overriding significance thereto . In view of the fact that Richard Wendling' s order td Glahn to return to her job was precipitated by her stopping to talk to her sister, during which time she was not attending to her assigned tasks, and as it does not appear that the Union was mentioned during this incident , I am unable to find that this order to Glahn manifested a change of working conditions as to her because she had engaged in strike activity. 8. Developments after the election a. The conversation between employee Wells and Howard and Richard Wendling Employee Wells testified that about 6 weeks before the instant hearing, he had a conversation with Howard and Richard Wendling at his press on the matter of more pay. According to Wells, to his question as to "why anybody in here can't get a pay raise," Howard replied "that my lawyer advised me against giving anybody in this shop a raise, that it would be an unfair labor practice against us."" Howard Wendling testified that, about this time, Richard and he went to Wells' press to discuss his habits of not showing up for work everyday as required. However, he specifically denied Wells' attribution to him. It was his further testimony that, as he was leaving Wells' press, after Richard had already done so, Wells said, "Howard, you guys are telling people that the reasons we're not getting pay raises around here is because of the N.L.R.B." Whereupon, he said that if Wells had heard this, it was not ture; pay raises were entirely his decision and the N .L.R.B. has nothing to do with pay raises at the plant. In this connection, Richard Wendling denied that Wells had ever asked him or someone else in his presence during mid-October about why people in the shop were not getting pay raises . In respect to the above, I note that Wells admitted that he was the one who introduced the subject of higher wages and that the accusation as to Respondent's position on higher wages was not based on anything that was said directly to him by management but on what he claimed was told to him by three other employees. I note, too, that the General Counsel did not adduce any of these employees who were told these matters directly, according to Wells, and there is no indication that these employees were then unavailable. Accordingly, in view of the General Counsel's attempt to prove indirectly what he could have sought to prove "Glahn testified that this occured a day or two before the election while Richard Wendling placed this incident around the end of July or August 1. "Wells testified that he told the Wendhngs during the discussion that he was repeating what three employees had told him and he told them the names of these employees. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD directly, in the light of the denials of Howard and Richard Wendling, and in all the circumstances of the case, I am unable to find that the evidence preponderates in favor of a finding that Howard Wendling did, on the basis of these accusations by Wells, which Wells admitted to him were based on hearsay, make the remarks attributed to him by Wells. Accordingly, I find further that the General Counsel has not sustained the allegations of the complaint, as amended, in this respect. b. The incident involving employee Glahn and Richard Wendling According to the testimony of employee Glahn, about 2 weeks before the instant hearing , which began on November 25, Richard Wendling approached her, while she was straightening up, and inquired as to what she had to do. She said she had nothing to do and he inquired "about the counters." To this, she answered that the necessary tins were not on hand . Whereupon, he found some tins, gave them to her , and said, "he wanted to get them done, because . . . after the 25th there would be a lot of shit flying. As to the foregoing, Richard Wendling admitted mentioning the date of November 25 at the time in question, and also admitted telling Glahn to "better get back and get this Browning job out because after the 25th the shit would fly." Inasmuch as there was no mention by Richard Wendling of the Union, or of Glahn's connection therewith, or of the instant hearing, and since the obscenity used by him could just as consistently have referred to the complaints that would be forthcoming to management after November 25 from Browning if the order was not ready by that date, as it could to a threat of adverse consequence to Glahn because of the forthcoming hearing herein, I find that the attribution to Richard Wendling is ambiguous and does not warrant a finding that Respondent thereby threatened Glahn in violation of the Act. 9. Recapitulation of the above findings and conclusions therefrom The findings heretofore made establish that Respondent, through its supervisors and management representatives, engaged in the following conduct since June 25, 1968: (1) it interrogated employees as to their own and their fellow employees' union membership, activities or desires, which interrogation , as appears hereinafter, occured in a context of threats of reprisal and promises of benefits; (2) it held forth probabilities of wage increases or of long range benefits in order to dissuade employees from their union activity; (3) it threatened (a) the loss of existing sick leave benefits, (b) the refusal to make loans to employees, as formerly, (c) more onerous working conditions, or (d) the elimination of the bindery and/or the letterpress , and/or the multilith, and/or the night shift, if the union organizational campaign is successful; (4) it threatened to discharge employees because of their union activity; and (5) it created the impression of having engaged in surveillance of the union meetings and union activities of its employees. As each of the foregoing acts of Respondent separately contravened the Act, I conclude, and find, that considering these acts, either separately or in combination , Respondent thereby interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act.=" The Nature of the Strike It is apparent from my findings above as to the dates upon which the above unfair labor practices occurred that all of them antedated the strike which began on July 1 and ended on July 23. Since the complaint, as amended, alleges that the strike was an unfair labor practice strike and since the validity of subsequent personnel action may turn upon the character of the strike," I shall now treat with this issue. A composite of the testimony of employees Wells, Sizemore, Saylor, Bezold, and Gifford and of Union Representative Gabbard establishes the following: During the week antedating the strike, prounion employees, at meetings among themselves and in meetings with Gabbard, discussed much of the antiunion conduct by Respondent's representatives which I have found above to have occurred during that period; gave voice to the consequent fears among them as to losing their jobs; and expressed concern over the deterring effect of this employer conduct on the organizational drive. As early as June 26, the second meeting of the employees, at which no union representative was present, those present voted unanimously to strike because of already known antiunion conduct of Respondent, if the union representatives thought that this should be done. Thereafter, on June 28, the Union took the step of asserting, by letter to Respondent, a claim of majority representation among Respondent's production and maintenance employees and of requesting a meeting for bargaining purposes, and, at the same time, cautioned Respondent that it risked the filing against it by the Union of unfair labor practice charges as a result of its alleged antiunion conduct during that week. Later that afternoon, Union Representatives Gabbard and Dourson attended a union meeting at which Gabbard, inter alia , apprised the assembled employees of the contents of the letter, told them that the antiunion conduct of which they were then complaining constituted unfair labor practices in his view; and explained to them that if they go on an unfair labor practice strike their jobs would be guaranteed. The culmination of this discussion was an unanimous vote by the employees to go on strike, unless Respondent forthwith granted recognition to the Union or, in the alternative, entered into a consent election agreement with the Union, under Board auspices. As already found, Union Respresentatives Gabbard, Dourson, and Nichols met with Howard Wendling in the lobby outside his office on July 1, and made an abortive request for either recognition or a consent election agreement. In the course of this meeting,]" according to "See N L R B v Security Plating Co, 356 F 2d 725 (C.A 9), Martin Sprocket and Gear Co v N.L R B, 329 F 2d 417, 420 (C.A 5), and NLRB v West Coast Casket Co, 205 F.2d 902, 904, as to the interrogation See N L.R. B v. Parma Water Lifter Co. 211 F 2d 258, 262 (C A. 9), cert denied 348 U S. 829 , and International Union of Electrical Workers v. N.L.R.B., 289 F 2d 757, 763 (C A.D C.), as to the threats See NLRB. v Exchange Parts Co, 375 U S. 405, 409, and N L R B v. Tideland Marine Service, Inc, 339 F.2d 291, 293 (C A. 5), as to the promises of benifit. See N L R B v Prince Macaroni Manufacturing Company, 329 F 2d 803 (C A 1); and N L R B v Merchants Police, Inc , 313 F 2d 310 (C.A 7), enfg 137 NLRB 525, as to creating the impression of surveillance "See Davis Firebrick Co, 131 NLRB 393; Greenville Cotton Oil Co, 92 NLRB 1033. "Richard Wendling testified that he overheard this discussion , as he was sitting in an office which faces the lobby He took no part in the discussion WENDLING PRINTING COMPANY the testimony of Gabbard, Dourson, and he, on separate occasions, told Howard Wendling that, as a result of the claimed unfair labor practices committed by him and his supervisors, the employees were at that moment prepared to demonstrate against those unfair labor practices. As to this discussion, both Howard and Richard Wendling denied that the union representatives made any reference either to the commission of unfair labor practices by Respondent or to its employees' going on strike. However, since Gabbard impressed me as a more reliable witness than either Howard or Richard Wendling and since Gabbard's testimony, in this regard, accords with the logic and probabilities of the situation, I credit Gabbard and find that the union representatives made clear to Howard Wendling that, if he rejected their alternative demands, Respondent risked a strike in protest against claimed unfair labor practices by it. In all the circumstances and on the entire record, I am persuaded that, notwithstanding the economic objectives which were present in the picture at the time the strike occurred, Respondent's unfair labor practices, found herein to have antedated the strike, were a substantial motivating factor in the employees' decision to strike. Accordingly, it follows therefrom, and I find, that the strike which began on July I and ended on July 23 was from its inception an unfair labor practice strike.31 C. The Unresolved Challenges to 12 of the Ballots Cast by Employees in the Election in Case 9-R C-7801 1. Simon, Sweeney, Bredwell, O'Brien, Hughes, and Lipscomb As already found, during the period of the strike, Respondent continued to operate the plant and augmented its nonstriking force by hiring 15 employees. Six of these new hires remained after the strike," namely, Anna Mae Simon, Frances Sweeney, Barbara Bredwell, Tim O' Brien, David Hughes, and James Lipscomb. The ballots of each of these six individuals was challenged by the Union in the election herein on August 6 on the ground that they were not regular employees. According to the testimony of Richard Wendling, those who were not retained after the strike were, when hired, either told their jobs were temporary or were told nothing, whereas those who were retained were told either that their jobs were permanent or "steady."" Bearing upon the foregoing testimony of Richard Wendling are the following facts revealed by the record concerning the size of the employee complement and the work load: As to the former, the net result of the above hirings was that the bindery had 11 female employees after the strike, instead of the 8 female employees before the strike.J° The complement of female employees in the bindery had never exceeded eight, having reached that figure by May 8, 1968, with the hiring of Sizemore on March 28 and Oliver on May 8, and most of the time before then there were less. In addition, there were four, instead of three, male employees assigned to the bindery. "See N.L R B. v. Sea-Land Service, Inc., 356 F.2d 955 (C A. 1), enfg. 146 NLRB 931; N L R. B. v Birmingham Publishing Company, 262 F.2d 2(C A 5), enfg as modified 118 NLRB 1380; and Stafford Trucking, Inc, 166 NLRB No. 107. "The others were either high school students, as were O' Brien and Hughes, or, in one case a college student, or relatives either of supervisors or of nonstriking employees. "Of those retained only employee Simon testified However, she was not questioned as to the nature of her hire. 559 The new addition was Lipscomb." And as far as the pressroom was concerned, there were after the strike two more employees," even though all the presses were being manned after the strike by the prestrike work force. Further, as to the work load in the bindery, by the end of the strike, the backlog that accumulated during the strike had been cleaned up substantially and for the next 2 weeks the work to be done in the bindery was down from the normal." As to the subsequent period, it is noteworthy that Simon, one of the new employees, was transferred to pasteup work about August 10 to take the place of one Veazey who had left her pasteup job about July 26,38 and that the job vacated by Simon was not filled. Significantly, too, Lipscomb, who was assertedly hired on a permanent basis for work in the bindery, was transferred to the night shift in the pressroom about a week or so after the end of the strike, without being replaced in the bindery.39 Further, at the time of the hearing herein, the female complement in the bindery had dwindled to seven employees. Thus, Bredwell assertedly went on a "part time" basis about 2 or 3 weeks before the hearing and had not worked at all since that time.'° Sprott took leave because of pregnancy a month before the hearing. Also, Hummel was injured in an automobile accident and was not then working. And with respect to the male complement in the bindery, it was increased about a month before the hearing by the fortuity of the early return from the Armed Services of one, Same Taylor, a former bindery employee. As to the situation in the pressroom after the end of the strike and up to the time of the hearing, the record shows that employee Ed Morris, a pressman, left his job on August 21 and has not been replaced. The only addition since Morris left was one, Bob Saner, who apparently is only a pressman's helper since he cleans up presses, mixes ink and loads and unloads paper for the presses. In this connection, I note, too, that Lipscomb divided his time between the bindery and the pressroom during the periods when he was assigned to the bindery, spending 25 percent of his time in the pressroom. Included among his chores were some janitorial duties formerly performed by the pressmen themselves. After Lipscomb left, the pressmen resumed these janitorial duties. As to Hughes and O'Brien, who were assigned to the pressroom at the time they were hired during the strike, they, like Lipscomb, performed odd jobs in the pressroom. As to O'Brien, I note Richard Wendling's testimony that he hired O'Brien with the intention of placing O'Brien in the plate department, and "The three additional female employees were Simon, Bredwell and Sweeney "The other three were Dale Lohrum, Ed Chandler, and George Roller Lipscomb transferred thereafter to the night shift in the pressroom only to return after about a month to the bindery, a day-shift operation, because he did not want to work in the pressroom Thereafter, on September 25, Lipscomb quit "Namely, Hughes and O'Brien "Ziegler testified that there was a "little slowness" "I note that Simon, who was assertedly hired on a permanent basis in the bindery was kept in the bindery beyond August 6, the date of the election, even though the job which she filled thereafter was vacated on or about July 26. During the interim period, the work formerly done by Veazey was divided between employee Trout, Production Manager Brauch, and Assistant Production Manager Rust "As already indicated, Lipscomb did return to the bindery thereafter. But this was because he decided that he did not want to work in the pressroom and not pursuant to a management decision that he was needed in the bindery. And when he quit shortly thereafter he was not replaced "Bredwell had also been absent frequently during the month before she changed to the asserted "part time" basis I 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his admission that this never happened. Both Hughes and O'Brien spent their time washing presses, taking printed matter off the presses, sweeping the floor and doing general janitorial work. When they returned to high school in the fall, they were assigned to the night shift and worked part time at these tasks." It is thus apparent, and I find, that, like Lipscomb, they were performing some duties which had theretofore been done by the pressmen.'' By way of explanation for having an enlarged work force after the strike was over, Foreman Ziegler testified that Respondent-Employer had acquired equipment in the form of an automatic cutter, a two-color offset press, a new folding machine, and a stripping machine which were to produce additional work; and testified further that their impact in the bindery room from July to December i was to "probably double, maybe triple that we do in our shop." However, both the automatic cutter and the folding machine had been acquired in the fall of 1967, and the two-color offset press and the stripping machine had been acquired the following January or February. And following all these acquisitons, Respondent- Employer hired two more bindery girls" and brought its complement of females in the bindery to eight, which complement was then at its high point. So far as appears, two of these eight bindery girls, had already been operating the stripping machine before the strike. Furthermore, according to the credible testimony of Glahn, the machine is "just mainly used when they have a big order of pads or something that they have to put tape on." Further, of the two companies to whom Ziegler attributed most of the expansion in the bindery, namely, Host and Browning, the former had already received delivery in June of an order which required the use of the stripping machine, and its next order was not due until September. And as to Browning, it had been a customer of Respondent-Employer for a long period; and so far as appears the additional work deriving from this account for the stripping machine involved the handling of the inside sheets of its notebook or pad which was filled only during the last 6 months of the year. Instead of sending these inside sheets to be done by another commercial bindery and then to be returned in order to be put up as a folded saddle-stitched book, these inside sheets were now being put up in the shop as a back-stripped book. So far as appears, this represented a fraction of the order which Browning places each year for calendars, scratch pads, and decimal equivalent charts. It is apparent from all the foregoing that the claimed additional work needs, after the strike, in the bindery and press department have been refuted, inter alia, (1) by the work experience of Simon, Lipscomb, and Bredwell, who were assertedly hired for bindery work but who transferred, quit, and took a leave of absence, respectively, in that order, during the ensuing several months and were' not replaced; (2) by the fact that Lipscomb devoted only "According to the testiomony of Ralph Chalk, any time that he possibly can he tries to break in Hughes on the Davidson press. "When Richard Wendling was asked , during cross examination by counsel for the Charging Party, whether "any person was occupying any position that Hughes and O'Brien were performing when they were retained after the strike or were they simply additions to your force," his reply was,"I don't recall." However, he readily answered a similar question as to Lipscomb and acknowledged that Lipscomb was hired as an addition to the work force. In all the circumstances, I am persuaded, and find, that all three of them were hired as additions to the work force, and that their situations with respect to whether they were hired as temporary qr permanent additions to the work force are indistinguishable. "Sizemore and Oliver about 75 percent of his time to the bindery during the time he worked in the bindery and spent the balance doing work in the pressroom," some of which had theretofore been done by the pressmen themselves and continued to be done by the pressmen after he quit; (3) by the facts that O'Brien, although hired for the plate department, was never placed in that department and there have been no additions to that department since the strike; and that both O'Brien and Hughes were not occupied full time in the press department doing odd jobs including some of the work formerly done by the pressmen, and spent some of their time at odd jobs in the bindery; (4) by the fact such machinery as was relied upon by Respondent-Employer to support its need for an enlarged work force had been acquired in either 1967 or early 1968 and had been installed and was operating before the strike began, and the bindery work force had been enlarged in March and May 1968 by the hiring of two female employees; and (5) by the evidence in the record warranting an inference, which I make here, that no substantial increase in work load was in the offing during the strike or at the time the strike ended. I, therefore, conclude, and find, that Richard Wendling did not testify credibly that these six individuals were hired during the strike as permanent or "steady" employees. Rather do I find, in all the circumstances of the case, that they were hired during the strike as temporary employees, and were thus not eligible to vote during the election on August 6. Accordingly, I recommend that the challenges to the ballots of Anna Mae Simon, Frances Sweeney, Barbara Bredwell, Tim O'Brien, David Hughes, and James Lipscomb be sustained.'' 2. Jeff Wendling Jeff Wendling is the son of Ralph Wendling and the nephew of Howard and Richard Wendling. He is 16 years old and a high school student. Before June 29, 1968, he used to accompany his father to the plant about once a month on a Saturday, and do some work in the plant. He was placed on the payroll for the first time on June 28, effective as of June 29, 1968. In this connection, there is uncontradicted testimony by Wells that, on June 25, during a discussion with Ralph Wendling" about his son, Jeff, he remarked that the employees might get a union in the plant and Ralph Wendling replied, "Yes, I guess I'd better get my boy in here before it's too late so I can get him to vote." In this connection, Richard Wendling admitted that "at the beginning of this problem,"" he told Ralph Wendling to bring Jeff in to work. It was his further testimony that, up to this time, Jeff had been training on the multilith and was being given some schooling as a printer by his father; that thereafter, during the strike, he worked 20 to 25 hours a week on the multilith; and that, since returning to school, he works "As already found, during his approximately 3 months of employment, Lipscomb also spent about one month in the pressroom on the night shift. "I am aware of the fact that, as of the time of the hearing herein, Frances Sweeney was still working full time in the bindery , and Hughes and O'Brien were still working in the pressroom , albeit on a part-time basis after school . However, I need not, and do not, pass upon whether they have, since the election, changed their status to that of permanent employees. "Ralph Wendling did not testify in this proceeding "Richard Wendling admitted that he was referring by this testimony to the union situation at the plant. WENDLING PRINTING COMPANY 561 only on his days off from school , occasionally after school, and not every Saturday; and, as to Saturday work, that depends upon the amount of work available and the decision of his father. Noteworthy in connection with the above testimony is the fact that, with the return of the regular press crew after the strike, there would, in all likelihood, have been no multilith press for Jeff to operate thereafter. In view of all the foregoing , including the undenied testimony of Wells' to the effect that Ralph Wendling told him, on June 25, that he was about to hire Jeff so as to qualify him to vote in any future election involving the Union; the fact that the multilith work for which Jeff was ostensibly hired did not survive the strike due to the return to work of everyone in the press department; the fact that, since Jeffs return to school, his work has been on an irregular and also on a when-needed basis, I am persuaded, and find, apart from any other considerations, that Jeff Wendling was not hired on June 28 as a permanent or "steady" employee . Rather do I find, in all the circumstances, as in the case of the six individuals discussed above, that his tenure was temporary at the time of the election and, as such , he was not eligible to vote. Accordingly, I recommend that the challenge to his ballot be sustained. 3. Maggie Moore Maggie Moore works only 3 to 4 hours a week on Saturday mornings cleaning the office area and the production area of the plant . She also spends some time cleaning the stairway leading from the street level of the building in which the plant is located to the apartment areas upstairs, as well as the hallways upstairs. She has been employed in this capacity for about 10 years. Since the building is not owned by Respondent-Employer herein but by Wendling, Incorporated, a separate corporation in which all the brothers and sisters in the Wendling family have equal shares, Moore's work in this connection does not constitute work on Respondent-Employer's premises. Moore's work in the production areas consists in the main of cleaning the two restrooms at the back part of the bindery, the floors in the production areas and the stairway between the first floor and the basement area. Her work in the office area consists of cleaning the offices, and the three restrooms which are located in that area and are adjacent to the offices and the linotype section. There is considerable conflicting testimony as to the amount of time spent by Moore in cleaning the two restrooms in the bindery and in cleaning in the bindery area, and as to the amount of time spent by Moore in the office area . However, I am satisfied that Wells, rather than either Richard Wendling or Dan Ziegler, testified more credibly in this regard . In view of Wells' testimony to the effect that Moore spends more time cleaning in the office area than in the production areas; in view of the fact that Maggie Moore does not punch a timecard, the fact that she spends some of her time cleaning an area outside the plant itself and belonging to another corporation, and the limited number of hours each week devoted by her to cleaning in the plant area, as well as in the office area; and in all the circumstances of the case, I find that Maggie Moore lacks a sufficient community of interest with the production and maintenance employees so as to be included in the same unit with them. Accordingly, I recommend that the challenge to her ballot be sustained. 4. Ralph Wendling As already found, Ralph Wendling is the brother of both Richard and Howard Wendling. He is also the senior vice president of Respondent-Employer, of which Howard Wendling is the president and sole stockholder. A composite of the credible testimony of employees Wells, Bezold, and Saylor establishes that Ralph Wendling oversees the work of the offset pressmen, assisting employees who run into trouble on their job, telling them what job to do next, relieving an employee at times when the employee leaves his press for lunch, assigning overtime to employees, and granting time off.08 In this connection, when the striking preparatory workers returned to work after the strike, they found posted a list of procedures signed by Ralph Wendling which they were to follow, and Ralph Wendling instructed them as to those procedures. Ralph Wendling also attends daily production meetings just before noon in the plant, along with Howard and Richard Wendling and admitted supervisor, Brauch; he is also supposed to attend weekly meetings held by Respondent-Employer each Thursday away from the plant at which supervisory personnel, including Richard and Howard Wendling attend, but he frequently fails to do so. In addition to the job of overseeing the work of others, Ralph Wendling also spends some time running presses, although he is not assigned to a specific press, and in getting plates and in mixing inks. However, he does not punch a timecard as do the other employees. There is also testimony by Wells that, when he was hired, Richard Wendling introduced Ralph Wendling to him and told him that Ralph Wendling was his "boss." In addition to the above, there is testimony by Howard Wendling that Ralph Wendling, like Richard and him, is provided with a Company car for which the Company also pays part of the gas; that his salary is approximately that of Richard Wendling; and that he receives a bonus which is the size given to acknowledged supervisors rather than to regular employees. In view of all the foregoing, I am persuaded, and find, that Ralph Wendling responsibly directs the employees working with him and, in the course thereof, exercises independent judgment. Accordingly, I find that he is a supervisor within the meaning of Section 2(11) of the Act. Moreover, apart from the foregoing, by reason of the fact that Ralph Wendling is the brother of Howard Wendling, the sole stockholder of Respondent-Employer, and is himself the senior vice president of Respondent-Employer, and also enjoys the special privileges enjoyed by Howard and Richard Wendling with respect to having a Company car at his disposal for which the Company pays part of the gas, I find that, as a result of his relationship to Howard Wendling, Ralph Wendling enjoys a special status which allies his interests with management.09 Accordingly, I rind that, on either ground, Ralph Wendling should be excluded from the production and maintenance unit and, in consequence , I recommend that the challenge to his ballot be sustained. The timecards used by employees provide on the reverse side for recording overtime worked by an employee . At the top of the card are the names Dick, Jim, Ralph, and Howard . Dick, Howard, and Ralph refer to Richard, Howard, and Ralph Wendling, respectively. Jim refers to James Brauch. An employee, when assigned overtime by one of these individuals, will encircle that name on this side of the card, which is captioned "Authorized Overtime." "See Cherrin Corporation v. N.L R B, 349 F 2d 1001 (C A. 6), enfg. 147 NLRB 527. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. David Rust David Rust is the assistant to Production Manager James Brauch, an admitted supervisor, who is in charge of all production operations. It is not disputed that, during Brauch's absences because of illness or during vacation, Rust acts in Brauch's place and stead and has the same authority as Brauch . Nor is it denied that the rest of the time he prepares shop orders, like Brauch, which accompany a job through the plant, checks those work orders that are prepared by employee Barrett, follows through on those orders which he has initialed while they are being processed through the plant and deals with independent printing firms on that part of a job which he has arranged with them to be done. It is also clear from the record that, in this connection, he informs departmental supervisors as to work priorities and consults with them as to the progress of particular jobs, checks prints coming from typesetting and checks plates, handles these jobs in all its phases, except the bindery work and delivery, and keeps in touch with customers as to problems arising on their jobs. In addition to these and related tasks, Rust does some pasteup work which takes 5 to 10 percent of his time. Rust's own testimony reveals that, although he punches a timeclock and is hourly paid, unlike other rank-and-file employees, he attends the above mentioned daily production meetings in the plant with other supervisory personnel;'° has been attending the above mentioned weekly meetings of management on a regular basis during the last 2 months and irregularly prior thereto; has been attending the sales meetings which are attended by Howard Wendling, Dan Ziegler and James Brauch, as well as the salesmen; has the authority, when Brauch is around, to take people off one job and put them on another in the course of scheduling work. Rust also testified that he used to have the keys to the plant until about the time of the strike when the locks were changed. In regard to the above, I note that, during his testimony, Rust denied that he had the authority to recommend the hire and discharge of employees, although he admitted saying in his prehearing affidavit to a Board agent that he had such authority. In all the circumstances of the case, including his unpersuasive explanation that he said in his affidavit that he had such authority because he thought that anyone in the shop could recommend such action to his supervisor, I do not credit his denial and find that the above admission in his affidavit reflects the true situation." I am persuaded from all the foregoing that Rust not only acts as an expediter of work orders but responsibly directs employees in the course of the work on these orders by and through his instructions to their supervisors. Accordingly, I find that he is, on this basis alone, a supervisor within the meaning of Section 2(11) of the Act. Furthermore, his supervisory status is further emphasized by his attendance at the daily and weekly meetings attended by management and supervision, as well as the monthly sales meetings convened by management, by his being in complete charge of all production operations in the absence of Brauch, the production manager, and by his authority to recommend the hire and discharge of employees. Accordingly, I find that David Rust should be "Rust admitted that he normally attends meetings of top officials of Respondent-Employer "See N L R B v. Walton Manufacturing Company and Loganville Pants Co, 369 U.S 404, 408. excluded from the production and maintenance unit as a supervisor, and, in consequence, I recommend that the challenge to his ballot be sustained. 6. Ralph Chalk Ralph Chalk is the highest paid individual on the night shift, receiving $3.75 an hour as against $3.10 or less for the others on that shift." According to the uncontroverted testimony of employee Gifford, David Rust told him on one occasion that Chalk was the night foreman." There is also the following uncontroverted testimony by employee Saylor: On one occasion, he worked late in the plate department and Chalk asked him to make a plate for him but he refused because of the lateness of the hour. The next morning, he was reprimanded by Brauch and Richard Wendling who told him that, when Chalk wanted a plate made, he was to do so. Chalk's work routine is to report at the plant about a half hour before the other employees on the night shift and confer with Brauch during that half hour about the jobs to be run that evening and also to talk to the pressmen who are working on the presses which are to be operated on the night shift. Chalk then relays this information to the employees on the night shift, telling them what presses to run and and what jobs to do. Chalk spends most of his time working on a press, but he also trains inexperienced personnel and gets stock for employees. The pressmen on the night shift bring their problems to Chalk, and Chalk will dispose of such problems as he can, and refer the others to either James Brauch or Richard Wendling.'° Chalk has the responsibility for the quality of the work on the night shift and both the employee involved and Chalk are answerable to management on questions relating to the same. Chalk's responsibility also includes approving jobs that are reruns or noncritical jobs, whereas critical jobs are subject to the approval of either Brauch or Richard Wendling. It is also apparent from Chalk's testimony that, before employee Fred Taylor was transferred to the night shift, Chalk was consulted by management and Chalk agreed to the transfer on the condition that Taylor could come in on time and report regularly. Chalk also admitted giving directions to employees Hughes and O' Brien, who work on his shift after school; and it is his further testimony that management checks with him as to "how [night shift personnel are] coming along." Chalk is the only one on the night shift who has the keys to the plant and he regularly attends the weekly meetings of management described heretofore. In view of the above and on the entire record in this case, I am persuaded, and find, that Ralph Chalk is a working foreman on the night shift, and that for most of the shift he is in sole charge of operations, responsibly directing all operations and exercising independent judgment in the course thereof. Accordingly, I find that Ralph Chalk should be excluded from the production and maintenance unit as a supervisor within the meaning of "Chalk testified that the complement on the night shift at the time of the hearing consisted of six employees and himself Of the six , about three worked only part time "Chalk does not have any official designation other than pressman and no one else on the shift holds a supervisory title. 'The night shift hours are from 4 p.m to midnight . Brauch and Richard Wendling may stay at the plant for an hour or so after the usual quitting time for them of 5 p.m. Richard Wendhng lives in an apartment in the same building as the plant Chalk reaches them on the telephone when he needs them. WENDLING PRINTING COMPANY 563 Section 2(l1) of the Act and, in consequence, recommend that the challenge to his ballot be sustained. 7. Vera Rottinghaus Vera Rottinghaus transferred from the camera department to the office area about 5 years ago, where she works under the supervisor of James Brauch, the production manager . She has a desk in the office area and punches a timeclock located there. According to Rottinghaus her duties have changed in certain respects since the strike. Thus, she no longer keeps the records of time spent by various employees on each printing job, and whereas she used to do proofreading only in relation to the orders for calendars, notebooks, and desk equivalent charts coming from the Browing Manufacturing Company account, she now does proofreading on other jobs. In addition, she now answers the phone, acts as receptionist and keeps the order book. Rottinghaus defined her work duties as "do[ing] a little bit of everything" and stated that she did not know her present classification." It would appear, and I find, from the record evidence which I credit, that Rottinghaus' average work day consists of the following. She proofreads in conjunction with employee Barrett, either at her own desk or at Barrett's desk in the production area, for about 1 hour a day," and for about 1 hour and a half per day by herself on all of the work on the Browning order and on other jobs. She spends about 15 to 30 minutes a day on typing work which is to be photographed for reproduction on plates for the presses, and spends another 15 minutes or so making entries in the daily order book from incoming shop orders. She devotes about an hour a day to processing Browning orders, maintaining records of such orders and of the postage and shipping expenses thereon , and in keeping a running inventory of Browning items on hand. She also devotes about 3 to 4 days a month in recording onto cards the various details of each order processed through the plant and maintains these cards on a wheel file. In addition to all the foregoing, Rottinghaus answers the telephone, sharing this duty with two other employees, acts as receptionist on infrequent occasions when someone appears and wants to see a person in the office, types shipping labels for Browning orders," and brings items relating to orders being processed in the typesetting and press areas and picks up written orders in the bindery as to work that has already been shipped. It is apparent from all the foregoing that Rottinghaus is a dual-function employee who spends a substantial part of her work day in proofreading, typing for reproduction in the preparatory department, and in the preparation of shipping labels for Browning orders, all of which are part and parcel of the production work of the bargaining unit herein. It follows therefrom, and I find, that she has a sufficient interest in the production and maintenance unit's conditions of employment to be included in the unit.SB Accordingly, I recommend that the challenge to her ballot be overruled and that her ballot be opened and counted. Recommendations Respecting the Election It is apparent from my findings heretofore with respect to the allegations in the complaint, as amended, that Respondent-Employer did not contravene the Act in any manner during the critical period between the filing of the petition in Case 9-RC-7801 on July 9, and the day of the election on August 6. Accordingly, since the claimed illegal conduct of Respondent-Employer during this period was also the subject of Objection 5 herein, and since such conduct, apart from the issue of its illegality, was, I find, insufficient to taint the election held on August 6, and to preclude a free and uncoerced choice by the employees therein, it follows, and I find further, that Objection 5 is lacking in merit. Accordingly, I recommend that Objection 5 be overruled. As heretofore noted, the other five objections filed by the Union to this election have hitherto been overruled by the Regional Director in his report on objections and challenged ballots. It cannot therefore be found herein, as the Union contends, that the election should be set aside because of conduct by Respondent-Employer affecting the results of the election. There does, however, remain the matter of completing the tally of the valid votes to determine whether or not the Union has obtained a majority of the valid votes cast in the election. Accordingly, I shall recommend that the Regional Director for Region 9 be directed to count the valid ballots of David Schwallbach, Davis Diesel, and Cynthia Ashford Barrett, the counting of which was heretofore deferred by him, and also the ballot of Vera Rottinghaus, whose ballot I found to be the only valid ballot cast among the 12 challenged ballots considered herein; and be further directed to issue either a certification of representative to the Union or a certification of results of election, depending upon the results of the revised tally, including these four valid ballots." Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act in the manner above found, Respondent engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY "Howard Wendling testified that he "considers (Rottinghaus to be] an employee of the production department." However , he admitted referring to her as an office employee in his prehearing affidavit to a Board agent "Rottinghaus testified that this proofreading took about 3 1 /2 hours each day. However, on the basis of David Rust's testimony, which I am convinced was the more credible, I find that the time so spent by her averaged about I hour a day. "Bindery employees also type shipping labels in connection with other jobs done by them. "See Berea Publishing Company, 140 NLRB 516, 519 As I have found that Respondent engaged in certain unfair labor practices, I shall order Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act. "As I have found that Respondent-Employer's preelection conduct does not warrant setting aside this election , I do not, and need not, reach the contention of the Union as to what the appropriate remedy would be in Case 9-CA-4800, were I to find that the election should be set aside 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in the case, I recommend that: A. Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their own or their fellow employees' union membership , activities or desires in a manner constituting interference, restraint, or coercion, in violation of Section 8(a)(1) of the Act. (b) Holding forth probabilities of wage increases or of long range benefits in order to dissuade employees from their union activity. (c) Threatening (a) the loss of existing sick leave benefits, (b) the refusal to make loans to employees, as formerly, (c) more onerous working conditions , or (d) the elimination of the bindery and/or the letterpress , and/or the multilith, and/or the night shift , if the union organizational campaign is successful. (d) Threatening to discharge employees because of their union activity. (e) Creating the impression of having engaged in surveillance of the union meetings and union activities of its employees. (f) In any like or related manner , interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join or assist Cincinnati Lithographers and Photoengravers International Union, Local No. 271, Lithographers and Photoengravers International Union, AFL-CIO, or any other labor organization , 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, or to refrain from any and all such activity. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Post at its plant in Newport, Kentucky, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 9 , shall, after being signed by a representative of Respondent, be posted by Respondent immediately upon receipt thereof and be maintained for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (b) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision , what steps Respondent has taken to comply herewith." "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 "pursuant to a decree of the United States Court of Appeals, Enforcing an Order," shall be substituted for the words "pursuant to a Decision and Order " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." IT IS FURTHER ORDERED that those allegations of the complaint, as amended , alleging violations of the Act not found herein be dismissed. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: After a trial at which all sides had the chance to give evidence, the National Labor Relations Board found that we, Wendling Printing Company, violated the National Labor Relations Act, and ordered us to post this notice and to keep our word about what we say in this notice. The law gives you the right: To form, join or help unions; To choose a union to represent you in bargaining with us; To act together for your common interest or protection; and To refuse to participate in any or all of these things. THE BOARD HAS ORDERED US TO PROMISE YOU THAT WE WILL NOT interfere with your rights. WE WILL NOT question you about your own, or your fellow employees' union membership, activities, or desires in a manner which disregards your rights. WE WILL NOT hold out to you the probability of wage increases or of long range benefits in order to get you to stop your union activity. WE WILL NOT threaten that (a) we will take away your existing sick leave benefits, (b) we will refuse to make loans to employees, as formerly, (c) we will impose more onerous working conditions on you, (d) we will discharge you, or (e) we will eliminate the bindery and/or the letterpress, and/or the multilith, and/or the night shift, if the union campaign is successful. WE WILL NOT threaten to discharge you because of your union activity. WE WILL NOT give you the impression that we are engaging in spying upon your union meetings or upon what you are doing in connection with organizing a union. WENDLING PRINTING COMPANY (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, 2407 Federal Office Building 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686.