Wendling Printing Co.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 544 (N.L.R.B. 1969)

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