Clark Printing Co., Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1964

146 N.L.R.B. 121 (N.L.R.B. 1964)

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