American Printers & Lithographers, Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1969

174 N.L.R.B. 1179 (N.L.R.B. 1969)

AMERICAN PRINTERS & LITHOGRAPHERS
American Printers & Lithographers , Inc. and
Chicago Typographical Union No. 16 , AFL-CIO.
Cases 13-CA-8043 and 13-RC-11226
March 14, 1969
DECISION, ORDER, AND DIRECTION
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On April 9, 1968, Trial Examiner Herman Tocker
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in any
unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief. The General Counsel and the
Charging Party filed cross-exceptions to the Trial
Examiner's Decision and briefs in support thereof.
The Charging Party also filed a brief in opposition
to the exceptions of the Respondent and in support
of certain findings of the Trial Examiner. The
Respondent filed a motion to strike General
Counsel's cross-exceptions to the Trial Examiner's
Decision and the General Counsel filed a response
to the Respondent's motion to strike.
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 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, the motion and response,'
and the entire record in these cases, and hereby
adopts the findings,2 conclusions, and
recommendations of the Trial Examiner, as herein
modified.
The Trial Examiner stated that the challenge to
Bonecke's ballot ought to be overruled as a matter
of law since the parties had stipulated that all
composing room employees were included in the
The Respondent ' s motion to strike General Counsel's cross-exceptions
to the Trial Examiner ' s Decision is based on the allegation that the
cross-except ions fail to comply with the specific provisions of Section
102 46 (b)(3) of the Board ' s Rules and Regulations , Series 8 , as amended,
in that they lack specificity
We find no merit in the Respondent's motion as the cross -exceptions
filed herein by the General Counsel designate the parts of the Trial
Examiner ' s Decision to which the objection is made and the supporting
brief designates by citation the pages of the record relied on, the grounds
for the exceptions , and citation of authorities in support of the grounds for
cross-exceptions Accordingly , the Respondent ' s motion to strike General
Counsel ' s cross-exceptions is denied
We agree with the Trial Examiner that the Respondent did not engage
in surveillance in violation of Section 8 (a)(1) of the Act In so doing,
however, we rely solely on the Trial Examiner ' s crediting Weinress ' denial
that he ever told Britzke that he heard about a meeting the previous night
1179
unit. The Trial Examiner further stated that, were it
not for the agreement of the parties, as set forth in
the Stipulation for Certification upon Consent
Election, he would find that Bonecke, a composing
room employee, does not have that necessary
community of interest with the other employees in
the unit to justify his being included therein for
voting purposes.
Contrary to the Trial Examiner and our
dissenting colleague, we find that the unit
description set forth in the stipulation of the parties
herein does not preclude our passing upon the
eligibility of Bonecke to vote in the election. The
situation here is identical to that in Udaco,' except
that there the agreement provided for final
determination by the Regional Director and here the
stipulation provides for decision by the Board on
issues concerning the conduct of the election. Thus,
the stipulation here defines in general terms the
composition of the unit but is not conclusive on
questions concerning elegibility. This is apparent
from the absence of an express agreement that
eligibility is limited to those whose names appear on
an approved eligibility list4 and the provision in the
stipulation that the parties' observers are authorized
"to challenge the eligibility of voters." Furthermore,
the intent of the parties is not clear from the
information before us, as our dissenting colleague
concedes, in effect, by his statement that "it must be
assumed" that the parties were aware that the unit
description they adopted would have the effect of
determining eligibility Also, as in Udaco, the
parties stipulated that the ". . . election shall be held
in accordance with . . . the Board's Rules and
Regulations, and the applicable procedures and
policies of the Board." It is an established procedure
and policy to consider whether an individual has
interests which are not allied with those of the
employees in the unit and should be excluded for
that reason under the Board's normal rule.' Finally,
the cases cited in the dissenting opinion are
distinguishable6 or support our view that the
'Mitchivoshi Uveda, d/b/a Udaco Manufacturing Co, 164 NLRB No
84, in which our dissenting colleague joined There it was concluded that a
stipulation as to a production and maintenance unit did not foreclose the
Regional Director from determining the eligibility of two production and
maintenance employees who were found ineligible because they enjoyed a
special status and shared a community of interest with the employer rather
than with the rank - and-file work force as a whole
'Norris-Thermador Corporation , 119 NLRB 1301
'N L R B v Jodm Manufacturing Co , 314 F 2d 627 (C A 2), where
the court noted that a literal reading of the stipulated unit description
would, contrary to the Board's normal rule, require the inclusion in the
unit and the counting of the ballots of college students employed for the
summer and upheld the Board ' s application of its rule and the consequent
exclusion of these ballots
'Thus, NL R B v J J Collins Sons , 332 F 2d 523 (C A 7), involved
the question of whether the Board erred in including in the unit an
employee whose job did not fit into the three job classifications set forth in
the stipulation , while Tidewater Oil Co v N L R B, 358 F 2d 363 (C A
2), and N L R B v Joclin Manufacturing Co , supra (re Ursim, Rollins,
and Palukis), involved questions of employees excluded or included
(Rollins and Palukis ) although they fell within specific categories named in
the agreed -upon unit, where no special factors were involved showing that
174 NLRB No. 177
1 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stipulation here is not determinative' of Bonecke's
eligibility We conclude, therefore, that the issue of
Bonecke's eligibility to vote may be decided
Bonecke was the president of Advance
Composition Co., Inc., which sold its typesetting
shop to the Respondent for a purchase price of
$30,000, with an initial payment of $10,000 and
subsequent annual payments of $4,000 per year At
the time of the election, Bonecke (as a corporate
entity) was a creditor to the extent of $12,000
Employed by the Respondent since the sale, he has
no definite time for reporting to work and in fact
makes a practice of reporting to work later than
other employees. He does not punch a timeclock as
other employees are required to do but makes out
his own timesheet His compensation initially was
$10,000 and is based on an annual rather than an
hourly basis. The other Linotype operator, Sungail,
was an hourly employee who earned approximately
$7,000 a year Although Sungail complained about
Bonecke's coming in late, the Respondent took no
corrective measures
Under all these circumstances, we conclude that
Bonecke had a special status which made his
interests closely allied to management and
inconsistent with those of employees in the
stipulated unit This is exemplified by the fact that
in contrast to other employees in the unit he
received an annual salary, that his compensation
was approximately 42 percent higher than an
employee in the same classification; that he had no
definite reporting time and that as a creditor, he still
enjoyed some of the perquisites of managerial status
stemming from his prior corporate ownership.
Under applicable Board principles and policies by
which the parties agreed to be bound, we conclude
the challenge to Bonecke's ballot must be sustained
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
DIRECTION
It is hereby directed that the Regional Director
for Region 13 open and count the ballot of Robert
J. Sungail, and thereafter prepare and cause to be
served upon the parties a revised tally of ballots,
including therein the count of the above ballot. If,
according to the revised tally of ballots, the Union
has received a majority of the valid ballots cast in
the election, the Regional Director is directed to
their interes t s were allied with management and hence were different from
those of the unit employees
'See discussion of N L R B v Joclm Manufacturing Co , in fn 5,
above
certify Chicago Typographical Union No. 16,
AFL-CIO, as the exclusive bargaining agent for the
employees in the appropriate unit. If, according to
the revised tally of ballots, the Union has not
received a majority of the valid ballots cast in the
election, the Regional Director is directed to certify
the results of said election
MEMBER ZAGORIA, dissenting in part
I would overrule the challenge to Bonecke's
ballot Although, were the issue mine to decide in
the first instance, I might well agree that Bonecke
possessed "special" interests warranting his
exclusion, the case is not now in that posture The
election was held pursuant to a Stipulation for
Certification upon Consent Election, a procedure
whereby the scope and composition of the unit is
decided by the agreement of the parties, and not the
Board The Union's petition initially read "all
hourly paid composing room employees," with the
words "hourly paid" specially written in. Thereafter,
at the conference, the record shows the attorneys
representing the Employer and the Union had some
disagreement as to "the wording of some
sentences." The unit finally agreed upon included
"all composing room employees," a description
which clearly includes Bonecke, a composing room
employee,' albeit a salaried one As the Trial
Examiner points out, the record indicates that the
Union was aware at the conference of the facts
surrounding Bonecke's employment; it was in
possession of a letter from him setting forth the
pertinent details. Moreover, there were at most five
employees in the unit, and I think it must be
assumed that the parties, in finally agreeing on the
unit description, were aware of its effect on the
possible inclusion or exclusion, eligibility or
ineligibility, of the handful of employees involved I
believe the parties' intent to be the controlling factor
in this type of case, and, like the Trial Examiner, do
not feel justified at this point in departing from
what seems to me to be the natural interpretation of
the parties' agreement in favor of some other
interpretation, which might accord more closely with
what the Board would have decided were the
question appropriately before it See N L.R.B v J.
J Collins' Sons, 332 F 2d 523 (C A. 7); Tidewater
Oil Co v N L.R B, 358 F.2d 363 (C.A 2);
N.L.R B. v. Joclin Manufacturing Co, 314 F.2d
627 (C.A. 2).9
The stipulated unit is even more explicit in specifying the inclusion of
"linotype operators " Bonecke and Sungail were the Employer's only two
lineotype operators On August 10, 1967, the date of the stipulation,
Sungail had been on layoff for 6 weeks , leaving Bonecke as the only
employee actively working in this classification
'I cannot agree with my colleagues that these cases are distinguishable,
or that they support the majority's approach to the present case In each of
the cited cases , the Board's attempt to focus on policy considerations,
rather than the stated agreement of the parties , was strongly rejected by
the reviewing court Both Collins ' and Tidewater specifically involved
efforts by the Board to engraft the "community of interest " doctrine upon
the parties ' stipulation, with the court in Tidewater stating "we view
community of interest as a doctrine useful in drawing the borders of an
AMERICAN PRINTERS & LITHOGRAPHERS
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN TOCKER, Trial Examiner- This consolidated
proceeding came on to be heard before me in Chicago,
Illinois, on January l l and 12, 1968 It is concerned both
with challenges at and objections to a consent election
conducted August 31, 1967, and a complaint alleging
violations of the Labor Management Relations Act, 1947,
as amended
Chicago Typographical Union No 16, AFL-CIO, the
Union, filed a petition August 4, 1967, requesting that an
election be held for certification of a bargaining
representative on behalf of the hourly paid composing
room employees of American Printers & Lithographers,
Inc., the employer The employer entered into a consent
agreement and the election was held. Five employees
voted, two for the petitioner and one against, with two
ballots being challenged one by Respondent and one by
the Union The Union filed objections September 8,
alleging (1) a discriminatory failure and refusal to recall
to work one Robert Sungail, a laid-off employee because
of his union activities, (2) unlawful interference with the
union activity on August 11, 1967, which interference
involved interrogation, promises of benefits, and threats,
all for the purpose of coercing employees to vote against
the Union, and (3) a threat, on August 23, to curtail or
terminate the work of the composing room if any
employee voted for the Union The challenges were, by
the employer, to the ballot of Robert J Sungail on the
ground that his name was not on the eligibility list and he
was no longer an employee and, by the Union, to that of
Henry P Bonecke on the ground that he was not a
regular hourly employee but salaried and therefore not
properly in the bargaining unit
In addition to the objections, the Union filed unfair
labor practice charges on September 8 and October 30,
1967 These were to the effect that (1) the employer,
following the Upton's filing of the representation petition,
failed and refused to recall to work the laid-off employee,
Sungail, because of his union activity, (2) following such
filing, the employer threatened its employees with loss of
benefits and promised them benefits thus interfering with,
restraining, and coercing them in the exercise of
guaranteed rights, and (3) since on or about June 27, the
employer refused to bargain with the Union as the
bargaining representative of its composing room
employees
The complaint was issued November 7. It alleged that
the Respondent on August 30 had engaged in
interrogation of its employees and on August II had
promised them benefits for the purpose of inducing them
to withhold their support of the Union, that on or about
June 23 it temporarily had laid off Robert Sungail and
thereafter failed and refused to recall him to work because
of his union activity, and, finally, that the Union had been
designated by a majority of the employees in the
appropriate bargaining unit, a function well within the discretion of the
Board But we do not conclude that the doctrine remains as an established
Board policy sufficient to override the parties ' intent when the Board, in
the interests of furthering consent elections , allows the parties to fix the
unit " (Id at 366 ) The same considerations seem applicable to me here
Cf Udaco Manufacturing Co, 164 NLRB No 84, where the unit
description was more broadly phrased , and there was less evidence of the
parties ' intent In Udaco , the Board upheld the determination of the
Regional Director , who under the parties ' consent agreement , was to make
the final decision on all challenges
1181
appropriate unit as their collective-bargaining agent but
since on or about June 27, following request by it,
Respondent had refused to bargain collectively with it
with respect to wages, hours of employment, and other
terms and conditions of employment Respondent, while
admitting the formal allegations pleaded for the purpose
of establishing jurisdiction, denied all allegations on the
basis of which a finding might be made that it had
violated the Act in any manner
The Regional Director issued his report on the
challenges and objections on November 9 He ruled that
both the challenges and the objections involved issues the
facts of which best could be determined on the basis of
testimony and other evidence to be developed at a hearing
Taking note of the pendency of the complaint case, he
directed that the representation case involving both the
challenges and the objections be consolidated with the
complaint case for purpose of hearing and decision by a
duly designated Trial Examiner of the Board
The Issues
The objections to the election involving the failure to
recall Sungail and the alleged unlawful interference of
August 11 are both included in the complaint The third
objection, involving an alleged threat on August 23, is no
longer an issue There was a total failure of proof
The issues raised by the complaint are (I) whether
Respondent engaged in unlawful interrogation on August
30, (2) whether it unlawfully promised benefits on August
II, (3) whether there has been an unlawful failure and
refusal to recall to work the laid-off employee, Sungail,
and (4) if the Union had been designated by a majority of
the employees in the unit on or about June 27, 1967,
whether there has been a bad-faith refusal to recognize it
for the purpose of gaining time to undermine its strength
and break down its claimed majority for the purpose of
causing it to be defeated in the representation election
Finally, it must be decided whether the ballots of
Sungail and Bonecke should be counted In this
connection, it is apparent from what was developed during
the hearing that if Sungail's ballot is counted the Union
will have won the election regardless of the Bonecke
ballot. If Bonecke's ballot then is counted and that ballot
is opposed to the Union, the result will be the same, for
the vote then would be three for and two against. If the
Bonecke ballot is not counted the result still will be the
same for the vote will be three for and one against And,
if neither ballot is counted, the result still will be the
same
I have been favored with excellent briefs submitted by
counsel supporting the complaint, counsel for the Union,
and counsel for the employer. They have served to
facilitate my disposition of this case All points made and
set forth therein have been given careful consideration
In the resolution of all issues with respect to which
credibility of oral testimony became a factor, I have
considered the demeanor and conduct of the witnesses,
their candor or lack of it, their objectivity, bias or
prejudice, their understanding of the matters concerning
which they testified, whether their testimony has been
contradicted or sufficiently impeached, whether parts of
testimony should be accepted when other parts are
rejected, consistency, plausibility and probability, and the
effect which leading questions might have had on the
answers elicited thereby
Now, on the basis of the entire record, I hereby make
the following
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
A The Business of Respondent and Jurisdiction
American Printers & Lithographers, Inc , the employer,
Respondent, at all times hereinaftermentioned was, and
now is, a corporation duly organized and existing under
and by virtue of the laws of Illinois. Its principal place of
business is in Niles, Illinois, and it is engaged in
commercial printing It has admitted the volume and
interstate nature of its business It is an employer engaged
in commerce and its operations have affected and do
affect commerce within the meaning of Section 2(6) and
(7) of the Labor Management Relations Act, 1947, as
amended The National Labor Relations Board has
jurisdiction over it and over this proceeding
B The Labor Organization Involved
Chicago Typographical Union No 16, AFL-CIO, is,
and at all times material herein, has been a labor
organization within the meaning of Section 2(5) of the
Act
C The Alleged Unfair Labor Practices
I The alleged promises of benefits on August 11,
1967
This alleged violation arises in connection with a
meeting called by Wallace Weinress, Respondent's
President, on or about August 11 It is dependent on
whether Weinress, by telling or reminding the employees
there present of Respondent's practices affecting oldtime
or retired employees, thereby promised them that they
would continue to have those or similar benefits if they
withheld membership and aid from or did not assist the
Union Evidence has been submitted of somewhat similar
conduct by Wemress during a conversation with August
Lang, an employee opposed to the Union
The Union, in arguing that Weinress' conduct during
this meeting constituted an unlawful promise of benefits,
relies primarily on the testimony of an employee, Ron
Wyles, to the effect that all the composing room
employees had been directed to attend and that, toward
the conclusion of the meeting, they had been advised that
the office manager would come in shortly with some
canceled checks which would be passed around The
checks were brought in "He laid them on the table It
was made out to a former retired letterpress foreman,
came out about $79.00, another check there for retired
salesman, that was about $45.00, and another check there
was made out to the widow of a former office manager,
and that was approximately $10000 And he said there
was a lot of things that went on that we didn't know
about When employees were sick, he might call on them,
and he brought up that he pays for the hospitalization
plan and that he takes care of his employees "
Another employee, Melvin Britzke, testified with
respect to this portion of the meeting, "[Hie began to
explain how he has taken care of some of his employees
and he passed around cancelled checks to show proof of
this and, well, he explained he was a man of his word
and that he would take care of his employees, and that's
about all I can remember "
These recitals or interpretations of what happened at
the meeting may not be read in isolation but must be
considered together with everything else that happened
there
Union Witness Wyles testified that when they arrived in
the conference room Weinress told them that he had been
called by the Union, that he had insisted on an election,
and that the election would be held August 31 He told
them also that he "had nothing against unions but that
this particular union had a bad record that a strike
vote was being considered at the present time and it
bothered him that a few employees could shut down his
entire plant in the event of a strike " Then, after telling
about some disagreement between the company lawyer
and the union lawyer "on the wording of some sentence,"
he told them that "he had restrictions on what he could
say but that we had known for a good many years he was
a man of his word, and if we wanted a union shop, that
was the way it would be " Union Witness Britzke testified
also that "Weinress opened the meeting by saying that
there were some union officials there that wanted to
organize the shop and he didn't believe that everyone was
in agreement with joining the union and for this reason he
was going to call a vote " and after reciting what has
been quoted above about the checks, continued that
Weinress "told -us that if we wanted a union, we could
have a union, however, this vote would tell the story "
Union Witness Lang, an employee who did not want to
join the Union, testified that in an earlier talk between
him and Weinress, Wemress had shown him some
canceled checks given to retired persons and had added,
"As long as you are here you will be taken care of in the
same way." This alleged remark, as quoted by Lang, must
be read together with his other testimony to the effect that
his opposition to joining the Union was because of his
ineligibility to qualify for the Union's pension even if he
did become a member He had a great concern about
what would happen to him after his retirement My
interpretation and understanding of his testimony about
the alleged Weinress remark to him is that it was only an
assurance to him, induced by his concern about his own
future, and that it had been elicited in response to that
concern expressed to Weinress. It is clear from all of
Lang's testimony that he was opposed to the Union He
did not intend to join or vote for it. Whatever remarks
Weinress might have made to him along the lines
indicated would not have had and were not intended to
have the effect of inducing him not to support the Union
Lang's version of the group meeting in the conference
room was given immediately following this testimony
about the prior exposure of the checks to him For that
reason the checks were uppermost in his mind while he
was giving this testimony He said, "Well, Mr Weinress
went through the same routine He showed us all these
checks and told us that we'd all be taken care of He
hated to see us go. The whole plant would be in one
union He'd be all right but he's kind of worried about
four of us being in another unit We should go out, the
whole plant would have to go out and it would hurt all the
other employes " The reference to the whole plant being
hurt was not made "in connection with a discussion of a
strike " Weinress merely had said, "(l)f anything should
happen"
Two weeks after the conference room meeting (and
presumably because of a request from the Union) Wyles
wrote a Union organizer a letter in which he undertook to
set forth what had happened The testimony given by the
witnesses called in support of the complaint was not very
far different from what he had reported in the letter with
the exception, however, that there was more detailed
reference to the remark about the Union and what would
AMERICAN PRINTERS & LITHOGRAPHERS 1183
happen in the event of a strike I quote from the letter
"This union did not have a good record and that a strike
vote was being considered at the present time It bothered
him that a few employees could shut down his plant in
case of a strike " Even this obviously was not complete
The evidence in toto is to the effect that Weinress
reminded the group that all the other employees of
Respondent were in a different union and discussed the
pros and cons of having an overwhelming majority of all
employees represented by one union while the employees
in the composing room, only four or five, were
represented by another. It was within Respondent's right,
under Section 8(c) of the Act, to make this comparison
and discuss the possibilities of what might transpire in the
future Westmont Engineering Co , 170 NLRB No 6
Nothing in this or in the other alleged remarks, as
testified by all the employee witnesses, contains any
"threat of reprisal or force or promise of benefit "
Throughout the speech Weinress exhibited no union
animosity In fact, according to Lang, Wyles, and Britzke,
Weinress indicated the contrary He made clear that it
was up to the employees themselves to decide whether
they wanted a union and that, it they wanted the Chicago
Typographical Union No. 16, that was their privilege and
he would abide by their wishes.
Weinress' testimony about what he had done and said
at the meeting is not at great variance from that given by
the employees His explanation for showing the checks
was that he believed the employees were not aware of the
practice and he wanted them to know about it He
reminded them that most of them had been with the
Company for many years and that he "felt [he] had the
same obligation to them as the people that were retired,
and whatever they did there would be no objection nor
would they be fired or changed, or anything, in our
plant " His version of the reference to the charging union,
after observing that "a free election was certainly all right
with" him was, "I did not like this particular union
because they have had very poor labor relationships in
Chicago, and at that time they were negotiating and they
had a slow-down in their work and that they were
allowing no overtime in the industry, as it is, and this
particular union had poor labor relationships in Chicago
and in the United States and that this was the only thing
that worried me about the Union "
The allegation in the complaint to the effect that the
Respondent, during the meeting of August 11, 1967,
"promised benefits to employees to induce them to
withhold membership, aid and/or assistance to the
Union" is not supported by substantial, probative evidence
and should be dismissed. William L Bonnell Co , Inc ,
170 NLRB No 14, paragraph numbered l
and he didn't think it was very nice "
We are asked, on the basis of this testimony, to find
and conclude that Respondent in this fleeting moment
engaged in unlawful and coercive interrogation Certainly
the observation about the meeting has overtones of
surveillance and if it was accompanied by the additional
statement it would be a display of displeasure As to the
latter, "and he didn't think it was very nice," we cannot
be too sure whether this was Britzke's reaction to the fact
that Weinress had commented about the meeting or
whether Weinress had said that "he didn't think it was
very nice." Britzke, in his later testimony, said that
nothing, except the remark to the effect that there had
been a meeting at Sungail's house, had been said He was
firm that nothing else had been said, that Weinress did
not say what the meeting was about, did not say who was
there, did not ask anything about the meeting, and did not
ask what had happened there
Weinress denied that he ever told Britzke that he had
heard about a meeting the night before.
As I have said, if the incident did occur there is a
suggestion of surveillance Surveillance smacks of
interrogation when the fact of surveillance is conveyed to
employees. While Respondent was opposed to the
petitioning and charging Union, there is nothing in the
entire record which suggests, in the slightest, that it was
opposed to the concept of unions, was antiunion in any
respect, or sought in any drive o^ campaign to deter its
employees from organizing if that was their wish The
evidence is to the contrary During the preelection period
Weinress made clear that it was the privilege of the
employees to select whatever union they preferred and
that he would abide by whatever selection they made,
without reprisal of any kind.
In the context of this case, although Weinress denied
that he had made the statement, even were I to reject his
denial, which I do not, it seems at worst merely to have
been a casual observation and not a remark made with the
intention either to probe into the union activities or to
deter Britzke or anyone else from attending other
meetings William L Bonnell Co, Inc, 170 NLRB No
14, paragraph numbered 2. And, as to the effect it might
have had on the good-faith issue in the 8(a)(5) charge,
even if it were found to have been a violation, see
Hammond & Irving, Incorporated, 154 NLRB 1071
This evidence was not substantial and of sufficient
probative value to persuade me that on or about August
30, 1967, Respondent interrogated its employees about
their union activities. The allegation should be dismissed
3 The alleged failure and refusal to recall Sungail
back to work
2 The alleged interrogation of employees about their
union activity
It is alleged that on August 30, 1967, Respondent, by
Weinress, "interrogated employees about their union
activity " This alleged interrogation is found in Employee
Britzke's testimony relating a conversation held August
30, the day following a union meeting at the home of
another employee, Sungail, the laid-off employee whose
ballot has been challenged The meeting between Britzke
and Weinress had been occasioned by a necessity to
"explain some property" but this objective was not
fulfilled because "the full information of the company
wasn't there and then at that time Mr Weinress just said
he understood there was a meeting at Mr Sungail's home
It is alleged, "On or about June 23, 1967, Respondent
engaged in the temporary layoff of employee Robert
Sungail and thereafter failed and refused to recall Robert
Sungail back to work because he engaged in union and/or
other protected concerted activity "
Assuming that Respondent was well aware that Sungail
was a leader in the effort to organize the composing room
employees, the evidence is potent , unrebutted , and even
seems to be conceded that , at the time he was laid off,
Respondent had lost so much business as not to
necessitate the employment of two linotype operators and
that it required only one The Union was aware of this
loss of business Respondent had in its employ both
Sungail and Bonecke Bonecke was regarded as a better
operator than Sungail Respondent ' s relation to Bonecke,
1 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by reason of its acquisition of his business and his
employment coincidental with that acquisition, was such
that, as between the two men, if one of them had to be
laid off, Sungail and not Bonecke was the one to be laid
off'.
Giving consideration to all of Respondent's conduct
during the organizing campaign, from its very inception
and until the election, I am unable to conclude that the
falling off of business resulting in Sungail's consequent
layoff was seized as a pretext for ridding itself of Sungail
and that its real reason was the effort to rid itself of him
because of his union activities and for the purpose of
discouraging membership in the Union
To the extent that the portion of the complaint quoted
above may be read as alleging a discriminatory layoff on
or about June 23, that allegation should be dismissed
Further, as to that part of the complaint which alleges
that the continued failure and refusal to recall was
because of Sungail's union or other protected concerted
activity, there is no proof that Respondent has recovered
business sufficient to require or enable it to rehire or
recall Sungail There has been no unlawful failure to
rehire and recall. To the extent that the complaint alleges
a continued failure to rehire and recall, that too should be
dismissed.
4. The alleged refusal to recognize and bargain with
the Union on or about and following June 27, 1967
On or about June 27, 1967, the Union had been
authorized by a majority of the employees in the unit to
represent them and to bargain collectively on their behalf.
I was concerned during the hearing as to whether the
signing by three employees of papers entitled,
"Application for Provisional Membership," constituted
sufficient authorization The Union's bylaws provide for
"provisional" membership to be granted "to qualified
applicants employed in printing establishments in the
course of organization " Such "provisional members"
ultimately become full members when the "local union
organization work of their printing establishment is
completed " This is a device utilized by the Union
during the course of organizing an unorganized unit It is
the manner in which a person desiring that it represent
him makes known that desire I hold that the papers
signed by the employees were sufficient to vest in the
Union the authority to represent them and to bargain
collectively upon their behalf I Spiewak & Sons, 71
NLRB 770; Everett Van Kleeck & Company, Inc, 88
NLRB 785; and see my observation and cases cited in the
fifth from the last paragraph of the portion of my decision
concerned with the union's demand for recognition in
Charm Handbags, Inc, 170 NLRB No 16.
On June 27, 1967, the Union officials, Hunt and Musil,
called on Respondent and spoke to Weinress According
to Musil, they arrived without an appointment and were
informed that there "would be a considerable wait. Mr.
Weinress was at some meeting " They waited for him
from forty-five to fifty-five minutes and he finally came
out, said that they did not have an appointment but,
because they had waited so long, he would see them for a
few moments They sought to give him the demand letter
but "he put his hands back and along his sides " In
response to his inquiry they told him that it was "a letter
requesting recognition" and that a majority of the
employees in the composing room had "signed as
members of the Union" and asked that the Union
represent them There is nothing in the alleged
conversation to indicate that Weinress was angered by or
antipathetic to the representations made to him
According to Musil, the only position taken was that
because of change of ownership Weinress was not the one
who was to handle the matter and, for that reason, he
refused to receive or touch the letter and he suggested that
they communicate with the company's lawyer The
meeting seems to have been friendly because, during the
discussion, Musil's associate, Hunt, referred to "the
family tree" and "discussed the friendliness of the father
[Weinress' father] with the employees " Also, according to
Musil, Weinress had said that he was unable to
"understand why the employees want to join the Union;
that the company has always treated - it's been like a
big family " This was followed by a recital of benefits
enjoyed by the employees at that time These benefits
were recognized as having been afforded to the employees
and Musil's associate, "Mr Hunt pointed out that
[Weinress'l father probably had more time with the
employees, was able to talk to them more and they felt
more friendly; and since Blair Associates had purchased a
controlling interest, they probably felt a loss of security
and because of this they wanted to join the Union to
guarantee their security and we certainly were not in the
business of putting print shops out of business We wanted
to work with them " Musil's testimony as to the manner
in which the meeting ended was, "[O]n a note of what I
thought was sincere friendliness he gave us the name of
the attorney to see, and we then left the company "
Hunt's testimony about this meeting was considerably
less detailed than Musil's He did remember that, when
declining to touch the envelope in which the demand letter
had been placed, Weinress had said, "It was not within his
authority to consider such matters, and he said he could
not even consider the matter. He was surprised He
expressed surprise He said, `I'm surprised that - would
be surprised if it were true you did represent a majority.' "
Considering the evidence in the record as a whole and
also that I received the impression from Hunt and Musil
that they held him in high regard and were extremely
hesitant about saying anything which might impugn to
him any antiunion attitudes I am unable to make an
inference that Weinress, confronted unexpectedly by the
Union representatives during an unexpected visit, at the
time that he refused to take the Union's letter and was
discussing the matter of representation, was not motivated
by a good-faith doubt of the Union's majority status but
that it was his real intention to obtain delay for the
purpose of undermining its strength and breaking down its
claimed majority.
Although it is argued that Musil and Hunt offered to
show the applications at this time and that Weinress did
not ask for proof of the Union's claim, their testimony
does not support this argument The letter in the envelope
merely asserted that the Union had been authorized
Nothing in it constituted an offer to prove the claim of
majority Both Musil's testimony and that of Hunt
practically establish that Weinress, unexpectedly visited,
actually was taken by surprise and did in fact have a
good-faith doubt that these employees, who he had
thought were so well satisfied, had decided to have their
own union.
Acting on the Weinress suggestion that they
communicate with the company lawyer, Hunt and Musil
met with him on about July 5. The conversation there was
to the effect that they had not "expected the refusal
[at the plant] of the [demand] letter" and that they had
AMERICAN PRINTERS & LITHOGRAPHERS 1185
come to him in the hope that they "could submit proof of
membership to a third party" for the purpose of
establishing the majority claim to the end that peaceful
negotiations might be commenced The attorney expressed
surprise that this particular unit had not been organized
because he "thought the whole place was union " Other
evidence in the case suggests that he well might have
thought this to have been the case because it appears that
the other employees are organized and represented by
another union Musil testified that he corrected this
assumption and was told that the Company had "no
objection to unions as such, but he believed it was the
policy of the Company not to accept any bargaining
agency without an NLRB election and that we should
petition for an election " The question which immediately
followed this statement was, "And did you?" Musil's
answer was, "We then petitioned for an election "
Hunt's testimony was generally to the same effect
except that he added that the company lawyer, after
stating his impression that the entire plant "was union,"
had referred to his recent or just begun association with
the Company and said that he "didn't know too much
about the details of the operation of the shop " After
Hunt and Musil had suggested that there be an
independent card check, also according to Hunt, the
company lawyer "said he would have to consult with his
principals. He didn't know what their attitude was but he
felt that if the people really wanted to join the Union,
[and] it was proved that we actually represented them,
that there would be no difficulty "
This is not the situation where, following a demand for
recognition, a union files a petition for an election or even
where, simultaneously with the demand, it files the
petition, only to be met with a campaign of unfair labor
practices designed to destroy its majority representation
and authority According to the testimony of the union
representatives, at the first meeting surprise and doubt
was expressed by Weinress and at the second meeting
surprise of a somewhat different nature, but still surprise,
was expressed by the company attorney In both meetings
there was no antagonism, no arbitrary rejection, and
nothing but a friendly discussion culminating in a
suggestion on the part of the company lawyer that an
election be held and an apparent acquiescence to that
suggestion by the union representatives Fully a month
later, August 4, the Union filed its petition and, before the
end of the following week, Respondent formally consented
that the election be held
While the Union had hoped or expressed the hope to
prove to the company lawyer, by resort to a disinterested
third party, the fact that a majority of the employees in
the unit had authorized it to represent them in
collective-bargaining negotiations, this did not rise to a
formal offer and demand for the opportunity to
demonstrate that majority As Musil testified, "We came
here in hopes we could submit proof of membership to a
third party, a disinterested party who would - that we
do have the members we claim to have and that we could
sit down to peaceful negotiations without any trouble.
Apparently the company lawyer was able to dissuade
them from pursuing their hopes Upon his suggestion
there was mutual agreement that the question of
representation be determined in a Board-conducted
election
The employer engaged in no unfair labor practices.
There is no reason to justify at this time a disregard of the
agreement by the parties that the question of
representation be determined in the election Joy Silk
Mills, Inc v N L R B, 185 F 2d 732 (C A D.C ), Laabs,
Inc, 128 NLRB 374; Irving Air Chute Company, Inc ,
149 NLRB 627, John P Serpa, Inc, 155 NLRB 99,
reversed and remanded sub nom Retail Clerks Union,
Local No 1179, AFL-CIO v N L R B, 376 F.2d 186
(C A 9, 1967), 166 N' RB No 66, and Sprouse-Reitz
Company, Inc, 168 NLRB No. 56 There has been no
refusal to bargain collectively within the meaning of
Section 8(a)(5) of the Act
D The Objections to the Election
There having been no unlawful failure and refusal to
recall to work the laid-off employee, Robert Sungail, no
unlawful interrogation on August 11, 1967, and no threat
on or about August 23, 1967, to "Go cold-type," the
objections to the election have not been sustained and they
should be dismissed
E The Challenges to the Sungad and Bonecke
Ballots
I The Sungail ballot
Sungail was laid off for lack of work with a reasonable
expectation that he would be reemployed Respondent's
agent, Charles Davis, who was delegated by it to inform
him of his layoff, testified that on June 22, 1967,
following instructions from Weinress, he had a
conversation with Sungail His entire testimony was
I offered to buy him a cup of coffee and he said no,
that he would buy me a cup of coffee, and I told him I
wanted cream and sugar, and we sat down and I told
him I had bad news for him I told him that we no
longer had need for his services, and I continued to say
why, which was because we had lost G S A catalogue
and because we had lost the Bruning publications
He expressed - I should say he said he wasn't
surprised that he was being fired I told him after that
that if he needed a job that I would give him the name
of a man that needed a typesetter
As our conversation closed, I said, "Should we ever
need his services again, we would call "
That was Davis' version of the conversation.
Sungail's layoff was occasioned by Respondent's loss of
business I credit Musil's testimony that, during his
meeting with Weinress, Weinress "stated that [Sungail]
was laid off because of a shortage of work It had nothing
to do with union activity that summer was the slow
season and he had hoped by the end of the summer the
work would pick up sufficiently to put him back to
work " Musil was firm in saying that Weinress never
claimed to have "fired Mr Sungail" and that he "used
the word `layoff ' "
Sungail certainly appears to have been given to
understand that he merely had been laid off and that he
would be reemployed On the day he was leaving,
Weinress criticized him for shaking hands with the other
employees "and saying goodby" because "he [Wemress]
didn't think that was necessary, that he didn't think the
layoff would be that permanent " Weinress sought his
assurance that he would return when needed although the
prospect of reemployment before Labor Day was ruled
out (Weinress admitted the handshaking episode but gave
a different version of his reason for complaining about it )
Sungail wrote Respondent a letter on or about July 24
in which he referred to the layoff as having been "only
temporary," stated his interest in returning to work for
1 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent because he was on a temporary job at the
time, and asked that Respondent "let [him] know about
how soon [he] will be able to return." Respondent
received but never replied to this letter. Had Respondent
actually discharged Sungail with the intention not to
rehire him it certainly would have and it must be held that
it should have responded to this letter and made clear that
Sungail had not merely been laid off but actually had
been discharged without hope for reemployment.
While I have held elsewhere that there is no proof that
Respondent was able to and should have reemployed
Sungail at the time of the election, I find that at that time
he still had a reasonable expectation that he would be
recalled and reemployed if Respondent's business picked
up. The expectation was not so remote and the possibility
of a business improvement not so farfetched as to justify
the conclusion that his separation from Respondent's
employ made him ineligible to vote in the election held
August 31, 1967 N L R.B v. Jesse Jones Sausage Co ,
309 F 2d 664 (C.A. 4), enfg 131 NLRB 370
Consequently the objection to his ballot is not valid and
should be overruled
2 The Bonecke ballot
According to the Regional Director's Report on
Challenges, "The petitioner [the Union] challenged the
ballot of Henry P Bonecke on the ground that he is not a
regular hourly employee but is on a salary "
This is the challenge which has been referred for
hearing and for "the disposition of" the issue raised
thereby I am confronted at the outset by the question
whether it is a proper challenge for consideration and
determination (Norris-Therm ad or Corp , 119 NLRB
1301, and Shoreline Enterprises of America, 117 NLRB
1619, 262 F 2d 933 (C A 5), are not involved.) The
Union, in its petition for an election, in response to No 5
of Board Form 502, originally defined the unit as "All
composing room employees; including linecasting machine
operators, compositors, lock-up men and proof press
operators," and excluded "guards and supervisors as
defined in the Act." As finally submitted, its definition of
the unit was changed because the words, "hourly paid,"
were careted in between the words "all" and "composing
" Thus, as finally submitted to the Board, the petition
described the unit as including "All hourly-paid
composing room employees . ," continuing as before
(Emphasis supplied ) This petition was filed August 4,
1967
On August 10, 1967, the Stipulation for Certification
upon Consent Election was signed on Board Form 652
and, by part 12 thereof, "The Appropriate Collective
Bargaining Unit," included
All composing room employees, including linotype
operators, lockup men, and employees engaged in
compositing and proof press operations, employed by
the Employer at its plant located at Niles, Illinois, but
excluding all office clerical employees, professional
employees, guards and supervisors as defined in the
Act. [Emphasis supplied ]
At the time that the parties signed this stipulation,
August 10, 1967, the Union was well aware of all the
reasons it now urges as grounds for not counting
Bonecke's ballot as a valid vote in the election Indeed, a
letter written by Bonecke to it April 4, 1966, bearing a
date stamp showing that it was received April 11, contains
in it much of the material upon which it now relies for
urging that his ballot not be counted.
I have referred above to testimony at the hearing that
during the group meeting Company President Weinress
informed the employees that his lawyer and the union
lawyer were having a disagreement "on the wording of
some sentences" There is not enough in this upon which
to base a valid inference that the disagreement as to
wording was a disagreement upon whether the unit
description was to be "All hourly-paid composing room
employees," etc , as it had been in the petition, or, "All
composing room employees, [etc] . " as it ultimately
was put into the agreement. For this reason I do not
make that inference On the other hand, elementary rules
of construction and interpretation of writings require a
ruling that the definition or description of the unit set
forth in the later and formal agreement of all parties with
knowledge of all the facts supersedes that set forth in an
initial or earlier ex parse petition filed by the Union and,
further, that the change, since presumably it was made
intentionally and as part of or one of the inducements for
signing the stipulation, is controlling
Inasmuch as the challenge on its face was only to the
effect that Bonecke is "not a regular hourly employee, but
on a salary," that challenge is clearly inappropriate.
He is and was a composing room employee and his being
that is not altered by the fact that he may be paid on an
annual salary basis. The method of compensation did not
exclude him from the unit as defined in the agreement of
the parties. In N L R B v. J J Collins Sons, 332 F 2d
523, (C A 7), the Court held that where the bargaining
unit involved was defined and its limits circumscribed by
stipulation of the Company and the Union, the Board's
discretion became restricted to its approval of the unit as
submitted by the parties The Court continued
The factor of "community of interest" and other
elements of Toporek's duties might well have formed a
rational basis for having included the job in the unit
under some descriptive designation identifying it. But
the Board did not do so. It did not so exercise the
discretion it may have had in such connection. And,
considerations applicable when the Board makes its own
independent determination defining the appropriate
bargaining unit do not control here where it is merely
interpreting the language used by the parties to define
and limit the unit in a stipulation for a consent election
The primary question here is what the parties intended.
N L R B v Joclin Manufacturing Company, 2 Cir,
314 F.2d 627, 633-634 .. .
After Joclin and Collins (above), the court in Tidewater
Oil Co v. N L R B, 358 F 2d 363 (C.A 2), before
referring to those cases said, "In such cases, where the
parties stipulate that the appropriate unit will include
given jobs, the Board may not alter the unit; its function
is limited to construing the agreement according to
contract principles, and its discretion to fix the
appropriate bargaining unit is gone " Then see N L R B
v Midwest Television, Inc , 370 F 2d 289 (C.A. 7)
The grounds now being urged both by the Union and
the General Counsel for sustaining the challenge are not
statutory such as those found in City Tire Company, 117
NLRB 753, and Radiant Lamp Corporation, 116 NLRB
40 They are discretionary for excluding particular
employees for the purpose of effectuating the aims of the
Act
When the Board wrote JJ Collins Sons, 142 NLRB
545, it did not indicate disagreement with N L.R B v.
Joclin Manufacturing Company, 314 F.2d 627 (C A 2),
but, on the contrary (see fn. 2 Collins, 142 NLRB 545) it
AMERICAN PRINTERS & LITHOGRAPHERS
stated that it was applying Joclin's legal principle In
Joclin, the court said
[Different] considerations [may be] applicable when [the
Board] itself defines a bargaining unit . . [and] when it
interprets a stipulation for a consent election, as here,
where the primary question is what the parties meant.
Since the stipulation literally provided for the inclusion
of all workers on the payroll during the test period
except those expressly excluded it can be argued
that, whether or not the Regional Director might
properly have insisted on an amendment of the
stipulation to exclude them, it was error to apply the
Brown-Forman rule [a discretionary rule governing
summer employees] to the stipulation as written
While the ordinary rule is that a Trial Examiner of the
Board must follow Board precedent even though reversed
by a particular United States Court of Appeals, it is not
controlling here. Here I am following a court decision to
which the Board seems to have deferred. Moreover, my
jurisdiction is limited to a consideration of the challenge
as it has been referred to me.
Consequently, it is my belief and recommendation that
this challenge ought to be overruled as a matter of law.
This view, however, may not be shared by the Board.
In order to make unnecessary a remand should the Board
disagree, I shall set forth briefly here my findings of fact
upon the issues as raised during the hearing and in the
briefs The necessity for this may be enhanced because
Respondent failed to object to the evidence in support of
the grounds presently urged and in fact appears to be
litigating them but I doubt that this results in a justiciable
issue under Fed. R Cir P rule 15(b) That rule should
not be expanded to apply to a ballot challenge based upon
a ground at variance with the written agreement of the
parties. I say this because under JJ Collins Sons and
Joclin, above, a jurisdictional issue is injected, the Board
being divested of its right to exercise a discretion normally
exercisable in the absence of a restrictive agreement and
my jurisdiction is limited to the challenge as it was
referred to me
Bonecke, prior to his association with Respondent, was
the principal owner of a corporation engaged in the
printing business. Under an agreement dated December
30, 1965, that corporation sold all its physical assets to
Respondent for $30,000, payable $10,000 at the time of
execution of the agreement and the balance of $20,000 in
five equal annual installments with interest at 5 percent
per annum. The agreement did not provide for a sale of
goodwill, or of accounts, or of intangibles, or for future
services to be rendered by Bonecke. However, it developed
during the hearing that Bonecke did bring to Respondent,
in connection with his subsequent employment by
Respondent, a number of accounts. (The fact that they did
not continue with Respondent or dwindled away is
immaterial. Respondent did acquire them and thereby
acquired as well the possibility of future, even though
unrealized, business from them ) Bonecke started working
for Respondent on January 1, 1966, at or about the time
the agreement was consummated. Respondent had asked
him to go to work for it and he agreed. As far as
punching a timeclock was concerned, a requirement
imposed on all other employees, Bonecke "didn't think it
was necessary " He did not punch the clock and his
reason for not doing so was that he made "out a
timesheet every day, which is the same as a timeclock "
However, it appears that some entries made by him on his
timesheets were not accurate and that these came to
1187
Respondent's attention but it took no disciplinary action
with respect to them Bonecke's compensation initially
was $10,000 a year which he was paid in weekly
installments of $200, later increased to $210. Other
employees are not paid on an annual basis but are paid
hourly, according to the timeclock Sungail, an hourly
employee who did the same work as Bonecke , was able to
earn only about $7,000. Bonecke has no definite time for
reporting for work He makes a practice of reporting later
than the other employees in the composing room His
explanation is that, because of his knowledge of the trade,
he can be helpful to salesmen who return to the plant
after the regular hours. His coming in late was resented
Employee Sungail complained about it but Respondent
took no corrective measures While Sungail still was
employed by Respondent, when different types of work
were available, Bonecke did the work he preferred to do
and left the other work for Sungail.
These differences in compensation paid to Bonecke, the
privileges enjoyed by him, and the liberality with which
his conduct is viewed, are all in an area which has been
held to justify a finding and conclusion that a particular
employee does not have the necessary community of
interest with the other employees in a particular unit to
justify his being regarded as a member of that unit for the
purpose of voting at a Board-conducted election Cherrin
Corporation v N L R.B, 349 F 2d 1001 (C A 6) His
being a creditor of the corporation to the tune of $12,000
(assuming that two of the $4,000 installments of the
$20,000 balance have been paid) is an additional factor
which might have a bearing on the desirability of his being
regarded as a member of the unit for voting purposes
It is hardly likely that if the unit were organized and a
collective-bargaining agreement between Respondent and
a union executed, Bonecke would be permitted to retain
the special privileges enjoyed by him even if there could be
agreement upon a personalized salary for him alone.
For all these reasons it would appear that his interest
could be regarded as adverse to those of other employees
in the unit Were it not for the agreement of the parties,
as set forth in the Stipulation for Certification upon
Consent Election, I would hold that he does not have that
necessary community of interest with the other employees
in the unit to justify his being included therein for voting
purposes. On the other hand, as I said initially, I believe
that the parties have agreed that he be included, that this
agreement was the jurisdictional basis for the
consent-election proceeding which made unnecessary a
prior decision by the Board as to whether he was to be
included, and finally the challenge is upon a ground or
basis excluded from consideration because of the
agreement . For all these reasons, the challenge was
improper and should be overruled.
Now, upon the foregoing findings of fact and for the
reasons there stated, I make the following
CONCLUSIONS OF LAW
1. At all times involved in this proceeding American
Printers and Lithographers, Inc., was and it now is a
corporation duly organized and existing under the laws of
the State of Illinois It is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2. Chicago Typographical Union No. 16. AFL-CIO, is
a labor organization as defined in Section 2(5) of the Act
3 The unit as defined in the Stipulation for
Certification upon C onsent Election executed and
approved August 10, 1967, is a unit appropriate for
1 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes of collective bargaining within the meaning of
Section 9(b) of the Act
4 It has not been established by a preponderance of
substantial evidence of probative value that the
Respondent engaged in any of the unfair labor practices
alleged in the complaint and for that reason the complaint
should be dismissed in its entirety
5. The objections to the election conducted August 31,
1967, have not been supported by substantial evidence of
probative value and they should be dismissed
6 Robert J Sungail is an employee who was "laid off"
because of a loss of business suffered by American
Printers and Lithographers, Inc On August 31, 1967, the
date when the election was conducted, he had a reasonable
expectation that he would be reemployed when
Respondent's composing room business recovered
sufficiently for it to employ a linotype operator in
addition to Henry P. Bonecke. That prospect of
reemployment was not so remote as to make it unlikely
for an indefinitely long period beyond the election For
these reasons he should be regarded as an employee who
was entitled to vote at the election The challenge to his
ballot therefore should be overruled
7. Henry P Bonecke, at the time of the election,
although not an hourly employee was a composing room
employee of the Respondent The Stipulation for
Certification upon Consent Election duly signed by the
Employer and the Union and duly approved by the
Regional Director defined the unit- "All composing room
employees, including linotype operators, lockup men, and
employees engaged in compositing and proof press
operations, employed by the employer at its plant located
at Niles, Illinois, but excluding all office clerical
employees, professional employees, guards and supervisors
as defined in the Act " Henry P Bonecke, not having
been and not being an office clerical employee, a
professional employee, a guard, or a supervisor, and not
having any family relationship or other relationship
whereby, pursuant to the statute, he must be excluded
from being considered a member of the unit, the challenge
to his ballot, "upon the ground that he is not a regular
hourly employee, but is on a salary" is an improper
challenge and should be overruled
Ballots To Be Counted
As a consequence , the ballots of both Henry P
Bonecke and Robert J Sungail should be opened and
counted as valid ballots cast at the election conducted
August 10, 1967
Upon the basis of the foregoing findings of fact and
conclusions of law, and pursuant to Section 10(c) of the
Act, I now recommend that the representation case
bearing Case 13-RC-11226 be severed from the complaint
case bearing Case 13-CA-8043 and that, upon such
severance , there be entered the following
ORDER
Pursuant to Section 10(c) of the Labor Management
Relations Act, 1947, as amended, the complaint in Case
13-CA-8043 be, and it hereby is dismissed in its entirety
RECOMMENDED REMAND
It is further my recommendation that upon such
severance the representation case bearing Case
13-RC-11226 be remanded to the Regional Director with
the direction that the ballots of Henry P Bonecke and
Robert J Sungail be opened and that the votes of said
persons be counted in determining the outcome of the
election which was conducted August 31, 1967, all in
conformity with the Board's Rules and Regulations, Series
8, as amended, governing Stipulations for Certification
upon Consent Election and the procedures to be followed
thereafter