Decision, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 464 (N.L.R.B. 1967)

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