Atlas Graphics, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1976

227 N.L.R.B. 136 (N.L.R.B. 1976)

136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atlas Graphics, Inc. and New York Lithographers and
Photo-Engravers' Union No. 1-P, G.A.I.U. Case
29-CA-4551
December 9, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
PENELLO AND WALTHER
On September 1, 1976, Administrative Law Judge
James T. Youngblood issued the'attached Decision in
this proceeding. Thereafter, the General Counsel filed
a statement in support of the Decision, exceptions,
and a brief, and Respondent filed a brief in support of
the Decision and cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the statement, excep-
tions, cross-exceptions, and briefs and has decided to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge: This
case was heard before me at Brooklyn, New York, on
February 17 and 18, 1976, based on a complaint which
issued on November 13, 1975, alleging that Respondent, as
the legal successor to Atlas Photo Engraving, Inc. (herein
called Atlas), violated Section 8(a)(5) and (1) of the Act by
refusing to recognize and bargain with the Charging Party
on March 10, 1975, and various dates thereafter although
requested to do so. In its answer and amended answer
Respondent denies the commission of any unfair labor
practices and specifically contends that there did not exist a
bargaining obligation to which it could succeed; that if such
a bargaining obligation existed the Union never made a
valid demand for recognition and bargaining; and that the
Board need not reach the first two arguments because the
Union's exclusionary and discriminatory membership poli-
cies disqualify it from using the Board's processes as a
charging party.
227 NLRB No. 1
At the hearing all parties were represented by counsel
and were given an opportunity to introduce relevant
evidence and to examine and cross-examine witnesses. The
General Counsel and the Respondent filed posttrial briefs
which have been duly considered.
Upon the entire record, including my observation of the
witnesses and their demeanor, and after due consideration
of the briefs filed herein, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New York corporation, since on or about
January 3, 1975, has maintained its principal office and
place of business at 90-35 Van Wyck Expressway in the
Borough of Queens, City and State of New York, where it is
now, and has been at all times material herein, engaged in
the commercial photoengraving business.
Since on or about January 3, 1975, in the course and
conduct of its business, Respondent purchased and caused
to be transported and delivered to its Queens plant
photoengraving supplies, materials, and equipment and
other goods and materials valued at an annual rate in
excess of $50,000, of which goods and materials valued at
an annual rate in excess of $50,000 were transported and
delivered to its Queens plant in interstate commerce
directly from States of the United States other than the
State in which it is located.
Respondent admits, and I find, that at all times material
herein Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
Respondent admits, and I find, that at all times material
herein, the Charging Party (herein Charging Party or
Union), has been a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The History of Atlas Photoengraving, Inc.
Atlas began operations in July 1947 as a commercial
photoengraving business. The business was owned by three
individuals, Abe Levine, Elmer Brown, and Edward Ser-
gen. Sergen testified that on the death of Brown he and
Levine became equal owners of the business. Shortly after
its inception Atlas became a member of the Photoengravers
Board of Trade of New York, Inc. (herein Board of Trade),
an employers' association. Although Atlas ceased being a
member of the board of trade in the late 1950's from its
beginning until January 31, 1970, it was signatory to
successive collective-bargaining agreements negotiated be-
tween the Union and the board of trade.
These agreements covered all employees of Atlas engaged
in the photoengraving process. While not employees within
the bargaining unit, the three owners were union members
and engaged in photoengraving work and whatever else
was necessary to keep the shop going. The record reflects
that several other employees not members of the Union
ATLAS GRAPHICS, INC.
also performed photoengraving work in and around the
plant.
In April 1970, following the expiration of the most recent
contract and apparently faced with the new board of trade
agreement , Atlas wrote the Union requesting a meeting to
discuss their problems. The letter reads as follows:
Atlas Photoengraving, Inc., was organized in April 1947
and has operated as a union shop to the present time.
We employ seven men at present as journeymen. About
-95% of our volume is zinc work. Five of our men are
paid over the scale and now, we are faced with the new
contract which calls for a $25.00 per week raise per
man.
We are at an impasse being in competition with non-
union shops in and around New York. We briefed our
customers about an increase in price and, the response
was such as to indicate their disapproval and seek other
suppliers . With the knowledge that our competitors are
non-union we feel certain that they can find them.
Because of these factors in order, for us to continue in
business, we would request to meet with you to discuss
our problems and seek a satisfactory solution.
As a result of this letter Sergen and Levine appeared at a
regular union executive board meeting . They pleaded with
the Union to allow Atlas to keep the -wages as they were
before the new contract, to allow them to stagger the hours
of the men, and to allow the men to work out of branch.'
The Union permitted the Company to do almost anything
to keep the plant shop operating . However it insisted that
Atlas pay the contract wage rates and pay the periodic
increases set forth in the new contract . Sergen testified that
Atlas did not sign the 1970 agreement between the Union
and the board of trade , but it did pay the wage rates and all
periodic increases set forth therein.2
Again - in 1973, when Atlas was presented with the new
board of trade agreement , it appeared before the Union's
executive board -and requested that they not pay the
contract wage increases . The Union demanded that the
contract wage increases be paid , but allowed the Company
to lay off two employees and to place all other employees
on rotation with the exception of the union 's chapel
chairman, Mr. Noroian.3 Sergen testified that over the
years if the Union had not allowed deviations from the
strict terms of the board of trade agreement they would
have gone out of business at an earlier date . Sergen also
testified that , although Respondent did not have a written
agreement with the Union during the last 4 years of its
existence , it did not withdraw recognition from the Union,
' By staggering, the hours an employee would not report to work until
there was somethingfor him to do. For example the stripper would not report
to work until the photographer (cameraman) had completed his work on the
plate and it was ready to ' be stripped . A branch is a classification such as
photographer , stripper, and etcher By allowing a man to work out of his
classification , he could perform more work and therefore eliminate the need
for additional employees.
2 The record reflects that the Union permitted small shops such as Atlas
to deviate substantially from thestnct terms of the contract in order for them
to keep their doors open thus keeping its members employed.
3 In a rotation each employee takes his turn at a month 's vacation without
137
but in fact recognized the- Union until Atlas ceased
operations.
The record reflects that during the last 4 years of its
existence, Atlas adhered to the provisions of the board of
trade agreement with respect to wage, vacations, holidays,
pensions, welfare, education, unemployment, supplemental
retirement, disability, bereavement, total hours of work,
and hiring.4
The record does not reflect the, number of employees in
the photoengr-avers bargaining unit at Atlas during the
many years of its existence. However, it does show the
number of employees employed by Atlas,during December
1974 the last month of its operation-. At that time there were
three union members in the bargaining unit, -Noroian,
Alligair, and Goldberg. Additionally there were two other
employees, Van Heuvel and Degenhardt, who had worked
for Atlas for 17 and 20 years respectively, These two
employees were not members of the Union and they were
not hired through the union hiring hall. They were hired as
production-clerks and not as photoengravers in the bargain-
ing unit. However, as time passed they did engage in
photoengraving work. -Former owner Sergen testified that
at, the end about 35 percent of their time was spent doing
photoengraving or unit work. Sergen also testified that to
his knowledge these employees performed photoengraving
work without the Union being aware of this fact. Herb
Lawson, an Atlas supervisor, and one of the new owners of
Respondent, testified that these 'employees performed
photoengraving work about 75 percent of their-time.
In resolving the conflict of testimony between Sergen and
Lawson, I accept Sergen's estimate that these two employ-
ees worked about 35 percent of their time at photoengrav-
ing. Sergen, one of the former owners of Atlas, worked days
as did Degenhardt and Van Heuvel. Lawson worked mostly
at night. Sergen was certainly in -a better position than
Lawson to observe these employees. Moreover, it is not
clear from Lawson's testimony whether his estimate was
based on their performance after the takeover, solely at
Atlas, or a combination of both. Accordingly, I find that
Degenhardt and Van Heuvel were not bargaining unit
employees. One other employee, Marty Keane, was em-
ployed as an artist. It is questionable whether this is
photoengraving work and therefore unit work. However, I
deem it unnecessary to resolve this issue because even if this
employee were included, the bargaining unit would have
consisted of no more than four employees. As the Union
represented three of these employees, it represented a
majority of the employees in the bargaining unit.
pay. It appears that the rotation had to take place before the two employees
could be laid off. Atlas agreed to pay the contract wage increases and all
periodic increases but it did institute the rotation system and thereafter laid
off two employees, Derkerzanan and Alfhtto.
4 Atlas did hire one union photoengraver without going through the
union luring hall. This employee, Alligair, was a deaf mute who was lured as
a special favor to a local minister . Alhgair was not paid the contract rate at
first, but as he became more proficient in the trade he was paid the contract
rate One other deviation was the payment of overtime It appears that by
agreement of the employees with the consent of the Union no overtime was
paid from 1973 until the cessation of Atlas' operations.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Takeover by Respondent
On or about January 3, 1975, Respondent purchased the
equipment, assets, and liabilities of Atlas. It also retained
all the former employees of Atlas, with the exception of
Degenhardt and Van Heuvel.5 Thus the bargaining unit
remained in tact after the takeover. Respondent continued
in the same business, making the same photoengraving
product as Atlas.
The record reveals that the employees of Atlas merely
continued on in the employ of Respondent without
interruption. In fact the employees were not even aware of
the change in ownership until they-saw the different
signatures on their paychecks.
Respondent had no discussion with the Union prior to its
takeover. However, around January 27, 1975, at the request
of the Union, Herb Lawson, secretary of. Respondent,
attended a meeting of the Union's 13- to-l5-member
executive board. Not knowing the reason for his appear-
ance at this meeting Lawson went alone: At'the outset of
the meeting Lawson was asked if he had taken over from
the former owners. He indicated that he had and that he
had "partners."
According to the testimony of Union President Aslanian,
Lawson was then asked to sign a copy of the Union's
contract with the board of trade. Lawson respondend by
saying that he needed more time to straighten out the "red
tape" involved in the takeover, "before he would sign a
contract." Lawson was asked if he had any intention of
changing from what had been going on in the past years to
which he stated "everything will stay the same." He also
stated that he did not intend to hire nonunion people.
Aslanian also testified that Lawson stated that he wanted
more time, then he would sign, and he intended to sign a
contract.
Lawson's version of the meeting is not too different from
Aslanian's, except that he denies agreeing to run a union
shop or that he would, or intended to, sign the Union's
contract. It is clear that at no time during this meeting did
the Union advise Lawson that it represented a majority of
the employees or that it wanted to meet and negotiate the
terms and conditions of employment for Respondent's
employees. It is equally clear that Lawson did not question
the Union's majority. At no time during this meeting was
Lawson shown a copy of the contract and he was not given
a copy when the meeting ended.
On January 29, 1975, by letter Aslanian forwarded a copy
of the 1973 contract negotiated between the Union and the
Photoengravers Board of Trade of New York to Mr.
Lawson. The letter reads as follows:
As per our conversation at the Executive Board meeting
on Monday, January 27, 1975, enclosed is a contract for
you and your partners to sign and return to the Union
Office. The signatures will be on page 38.
Two copies of the contract were- enclosed in the letter,
one of which had already been signed by Aslanian and the
5 The owners of Respondent are Herb Lawson, a former supervisor of
Atlas and- son of Abe Levine, one of the owners of Atlas and Richard
Degenhardt and Van Heuvel former employees of Atlas.
6 The original charge filed on September 3, 1975, and the amended charge
business manager of the Union. The other was for Lawson
to keep. Lawson did not respond to this letter. He testified
that his reason was because "I don't know if I could live
with these terms and conditions. I'm not-I'm not in the
habit of just being intimidated to sign something or being
put in a position where I'm sort of forced to sign
something."
During the months of February, March, and April 1975,
Aslanian made three or four attempts to contact Lawson by
phone. He testified that on two of these ocassions he did
reach Lawson and he informed Lawson that he had not
received the signed contract. On both ocassions, according
to Aslanian, Lawson wanted more time to straighten out
the business. According to Lawson when the contract was
brought up he advised Aslanian that he was not signing
anything and that it had to be discussed thoroughly with his
partners and requested more time before he committed
himself.
In late April 1975- Aslanian and Business Manager
O'Brien went to Respondent's plant at night and talked to
Lawson. Aslanian stated that he had another contract
signed by him and O'Brien and requested Lawson to sign it.
Lawson refused stating his partners are not here and he
could not sign anything without his partners. There
followed a heated discussion between Lawson and O'Brien
and it was suggested that Lawson and Aslanian meet
quietly and privately at some other time.
It appears that Aslanian and Lawson had several other
conversations subsequent to this event. According to the
testimony of Aslanian in the subsequent telephone conver-
sations with Lawson he asked Lawson if he were prepared
to sign the Union's contract. Lawson testified that in one of
these conversations Aslanian asked if in lieu of signing a
contract would he "be willing to make payments and
contributions to the welfare funds, or fringe benefits, would
I go along with that and we would then be permitted to
operate as we were."
He said he would try to get the Executive Board to go
along with this.
I said, all right, you see what you can do, and I'll talk
to my partners about it.
Aslanian denied making this statement. This appears to
be the last communication between the two parties until the
filing of the charge on September 3, 1975.6
Discussion and Conclusion
A. The Appropriate Unit
The complaint alleges, in paragraph 8, that:
all photoengravers employed at the Respondent's
Queens plant, exclusive of all office clerical employees,
salesmen, guards, and supervisors as defined in Section
2(11) of the Act, constitute a unit appropriate for the
purposes of collective-bargaining within the meaning of
Section 9(b) of the Act.
filed on September 10, 1975, contained an 8(a)(3) allegation covering the
discharge of Chapel Chairman Norman. It appears that this allegation of the
charge was dismissed.
ATLAS GRAPHICS, INC.
In its answer and first amended answer Respondent denied
the allegation contained - in paragraph 8 of the complaint.
At the hearing, Respondent did not offer any testimony or
other evidence which would explain its position as to why
the unit was inappropriate , and in its posthearing brief
Respondent did not explain its position why it thought the
unit was inappropriate.
Respondent is engaged in the business of making printing
plates for photoengravings at its place of business in
Jamaica, Queens , New York. Atlas , which occupied the
same building presently occupied by Respondent , carried
on a similar photoengraving business therein for more than
25 years . Both Atlas and Respondent used only photoen-
gravers in this process . At all times material herein the
Union represented the photoengravers of Atlas during its
years of-operation. With the exception of certain produc-
tion clerks and salesmen , Respondent employed only
photoengravers who were represented- by the Union. The
contracts which were executed by Atlas from 1947 to 1970
covered all employees engaged in the photoengraving
process. As indicated this covered all of the production
employees . This' is a single-plant -unit . In view of the
bargaining history since 1947 and the fact that the Board
normally holds a single-plant unit to be appropriate, and as
Respondent has given no reasons why the unit is inappro-
priate, it is my view that this is an appropriate unit.
Moreover, it is the contractual bargaining unit in which the
Union has been recognized for the last-29 years. -
B. The Successorship of Respondent and Its Duty
to Bargain With the Union
In its answer and amended answer Respondent denies
that the Union was, or is now, the exclusive representative
of the employees of Atlas or Respondent. Respondent also
contends that it is not a successor to Atlas. And, if it is a
successor, no duty to bargain with the Union devolved on it
because there was 'not in existence at the time of the
takeover a certification from the Board certifying the
Union as the majority representative of the Atlas employ-
ees, or a collective -bargaining agreement establishing the
Union 's status as the contractual bargaining representative
of the Atlas employees. Thus, Respondent contends that
absent a certification or contract no bargaining obligation
passes to it as purchaser of the Atlas operations; that
recognition of an incumbent union by a predecessor is not
sufficient to encumber an otherwise legal successor with a
duty to recognize and bargain with the Union.
As found above, at the time of the takeover there were at
most four employees in the photoengraving bargaining unit
and, of these four, three were dues-paying members of the
Union. The new owners of the business were aware of this
fact.? Respondent retained all three union members thus
giving the Union a substantial majority among the unit
employees. Thus, I conclude that at all times material
herein , both before and after the takeover, the Union
represented a majority of the employees in the appropriate
bargaining unit.s
? The three new owners had worked for Atlas for many years and knew
who belonged to the Union and who did not
139
Accordingly, as Respondent purchased the business of
Atlas "lock, stock, and barrel," and retained a substantial
majority of the unit employees knowing , that they were
union members, it is my conclusion that Respondent is a
legal successor to Atlas unless there is merit to Respon-
dent's contentions . Tn support of its contention that there
must exist a certification or a collective -bargaining agree-
ment before an otherwise legal successor inherits an
obligation to recognize and bargain , Respondent relies on
N.L.R.B. v. Burns International Security Services, Inc., 406
U.S. 272, (1972), and Roman Catholic Diocese of Brooklyn,
222 NLRB 1052 (1976).
In the Burns case it is true that the Supreme Court placed
great emphasis on 'the existence of a recent Board certifica-
tion. Thus, the court stated (at 278):
In an election held but a few months before , the union
had been designated bargaining agent for the employees
in the unit and a majority of these employees had been
hired by Burns for work in the identical unit. It is
undisputed that Bums knew all the relevant facts in this
regard-and was aware of -the certification and of the
existence of a collective-bargaining contract . In these
circumstances , it was not unreasonable for the Board to
conclude that the union certified to represent all
employees in the unit still represented a majority of the
employees and that Bums could not reasonably have
entertained a good-faith doubt about that fact. Burns'
obligation to bargain with the Union over terms and
conditions of employment stemmed from its hiring of
Wackenhut's employees and from the recent election
and Board certification . It has been consistently held
that a mere change of employers or of ownership in the
employing industry is not such an "unusual circum-
stances" as to affect the force of the Board 's certifica-
tion within the normal operative period if a majority of
the employers after the change of ownership or manage-
ment were employed by the preceeding employer.
It appears that the Court was concerned with establishing
the fact of the Union's majority status rather than the
means used to establish this fact . Thus, it stated that it was
not unreasonable for the Board to conclude that the
Union's majority status did not change in v.aw of the
certification . The certification was the means to establish
the fact of majority status. The Court did not say that this
was the only way to establish the Union's majority status.
In fact, in the Roman Catholic Diocese of Brooklyn case
relied on by Respondent , the Board specifically stated (at
1053):
It is well settled that a successor employer is obligated
to bargain with a Union which is the exclusive representa-
tive of the employees acquired from the predecessor, absent
a reasonably based doubt that such union represents a
majority of the employees. This is so whether such
representative status -is evidenced by a Board certifica-
tion or by recognition and the existence of a collective-
bargaining contract . [Emphasis supplied.]
B At the time of the heanng Norman was no longer employed by
Respondent.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, the Board like the Supreme Court in Burns was
concerned with establishing the fact of the Union's majority
status rather than the means used to accomplish this end.
In the Burns case the Union's majority status was
established by a Board certification and a contract and in
the Roman Catholic Diocese of Brooklyn case the majority
status was established by the existence of a contract only.
Does this mean that in the absence of a certification or
collective-bargaining agreement there can be no legal
successor? I do not think so.
In change of ownership cases it is the existence of the
substantial continuity of the employing industry that is
important. Here clearly there is a continuity because
Respondent continued to operate the same business, in the
same way, with substantially the same employees as did its
predecessor ; surely the successor has the same bargaining
obligations as did the predecessor.
The Act makes it an unfair labor practice for an employer
to refuse to bargain collectively with the representative of
his employees. The Act does not dictate how that represen-
tative status is created. The facts from this record quite
clearly establish that from 1947 to 1970 Atlas recognized,
bargained with, and executed successive collective-bargain-
ing agreements with the Union. And, although it did not
sign any collective-bargaining agreement after 1970, Atlas
continued to re cognize the Union as the bargaining
representative of its employees. This fact is clearly estab-
lished by the testimony of former owner Sergen who
testified that, while Atlas did not have a written agreement,
they complied substantially with the agreement between the
Union and the board of trade. And in most of the areas
where it deviated from the written contract it did so only
after discussions with, and permission from, the Union. The
absence of a written agreement does not negate the
existence of a bargaining relationship.9 There is no doubt
that a working bargaining relationship existed between the
Union and Atlas and that this relationship continued up
until Atlas sold its business.
Accordingly, as the Union represented a majority of the
photoengraving employees at Atlas, there was an obligation
on the part of Atlas to recognize and bargain with the
Union. Respondent purchased the business of Atlas on
January 3, 1975 "lock, stock and barrel," and hired its three
remaining union members . This takeover was so smooth
the employees were unaware of it until they saw the
different signatures on their paychecks. Under these
circumstances , it is my conclusion that Respondent became
the legal successor to Atlas and inherited Atlas' bargaining
obligation with regard to the Union.
C. The Alleged Refusal to Bargain
Having found that Respondent succeeded to a bargain-
ing obligation, the next question presented is did Respon-
dent refuse to recognize and bargain with the Union?
Respondent contends that, if it did succeed to a duty to
recognize and bargain with the Union, that duty never
ripened because the Union never properly demanded
recognition or bargaining.
The facts are quite clear that at no time did the Union
advise Respondent that it represented a majority of its
employees and that it wanted to meet and discuss, or
negotiate , the terms and conditions of employment for its
employees. It is also quite clear that the Union's only
demand was the Respondent sign a copy of the Union's
existing contract with the board of trade. Union President
Aslaman testified quite candidly that on each occasion
when he talked to Lawson he requested him to sign the
board of trade agreement. The first request was on January
27, 1975, at a union executive board meeting . Lawson was
requested to attend the meeting by the Union, but he was
not informed as to its purpose. At this meeting after
ascertaining that Lawson was one of the new owners of
Respondent, Lawson was asked to sign the board of trade
agreement . At no time during this meeting was he shown a
copy of the agreement that he was requested to sign. There
were no discussions of the terms and conditions of the
contract nor was Lawson offered any alternatives to
signing . According to Lawson, he refused to sign saying
that he needed more time and had to discuss the situation
with his partners. According to Union President Aslanian,
Lawson agreed to sign or he intended to sign the contract at
a later time. As indicated, Lawson was not shown a copy of
the board of trade agreement and there is no evidence to
establish that Lawson had read this agreement or was
familiar with its terms. Lawson struck me as a very cautious
man and he knew that Atlas had not signed an agreement
with the Union during the last 4 years of its existence.
Therefore, I do not believe he would at the very first
meeting with the Union without any discussion of its terms
agree to sign a document he had not read or even seen.io
On January 29, 1975, 2 days after the first meeting, and
although the Union had allowed Lawson more time to
consider signing the contract, the Union mailed a signed
copy of the board of trade agreement to Lawson for his
signature. The letter did not contain a request to bargain, it
requested only that the contract be signed by Lawson and
his partners. On two subsequent occasions Aslaman con-
tacted Lawson by phone and on each occasion he requested
Lawson to sign the board of trade agreement.
At a later meeting, in late April 1975, in Respondent's
plant, Lawson was again requested to sign the board of
trade agreement. His refusal then brought on a heated
discussion with Union Business Manager O 'Brien. The
same request was repeated in subsequent telephone conver-
sations with Aslaman. At no time did Respondent request
Lawson to meet and discuss or negotiate the terms of the
collective-bargaining agreement or the terms and condi-
tions of employment of its employees. The Union's only
demand was that Lawson sign the board of trade agree-
ment. He was not offered any alternatives. It is also quite
clear from the record that at no time did Lawson refuse to
meet with the Union.
Although a request that an employer sign a contract
might be a request to recognize, it is not, in my view, a
demand for bargaining. On the contrary, absent some
alternatives, it demonstrates that there will be no bargain-
9 The fact that Sergen recognized the Union partly out of fear of loss of 10 The complaint does not allege this incident as part of the violation
his pension does not detract from the fact that he did recognize and bargain
with the Union and that he knew that the Union represented the majority of
his employees
ATLAS GRAPHICS, INC. 141
ing and the employer must "take it or leave it." NLRB. v.
Burnett Construction Company, 350 F.2d 57, 60 (1965). It is
clear, and I find, that Respondent was not given any
alternatives to signing the board of trade agreement.ll
Confronted with this situation Lawson did the only thing he
could do under the circumstances, and that was refuse to
sign the agreement. Having received only a demand to sign
an existing agreement without negotiations, Respondent
was under no obligation to do anything. He certainly did
not have to suggest any alternatives. See Chem-Spray Filling
Corporation, 176 NLRB 754 (1969).
The General Counsel recognizes that the Union's only
demand was that Respondent sign the board of trade
agreement. Thus, in his brief he said, "Subsumed in the
numerous requests of Respondent to sign a contract and its
submission to it of the contract was the request to
recognize." I agree that these requests might be a request to
recognize the Union, but they do not constitute a demand
for bargaining. In my view Lawson did not refuse to
recognize the Union. On the contrary, he met with the
Union on two occasions and talked with Aslanian some
four times on the -telephone, but, each time he was
confronted with one single demand, sign the board of trade
agreement . At no time did he challenge the Union's right to
represent the employees of Respondent.
In view of the foregoing I find and conclude that
Respondent has not refused to recognize or bargain with
11 Lawson testified that in his last telephone conversation Aslaman
proposed that if Lawson paid the Union's fringe benefits he would not have
to sign the contract. Aslanian indicated he would first have to clear this with
the executive board. Lawson told him to see what he could do and he would
discuss it with his partners. Aslanian never contacted Lawson after this If
this can be considered an alternative to signing a contract, it is clear that
Lawson was receptive- and willing to discuss this proposal. However, the
Union did not contact him thereafter. This is not a refusal to recognize and
bargain.
the Union, and I will therefore recommend dismissal of the
complaint.
Upon the basis of the foregoing fmdings of fact and upon
the entire record of this case I make the following:
CONCLUSIONS OF- LAW
1. The Respondent, Atlas Graphics, Inc., is an employ-
er engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. New York Lithographers and Photoengravers Union
No. 1-P,G.A.I.U., is a labor organization within the
meaning of Section 2(5) of the Act.
3. The General Counsel has failed to establish by the
requisite preponderance of the evidence that Respondent
has engaged in any unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act as alleged in
the complaint in this case.12
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case, I
hereby issue the following recommended:
ORDER 13
It is hereby ordered that the complaint be, and it hereby
is, dismissed in its entirety.
12 In view of my findings and conclusions in this matter I deem it
unnecessary to pass upon the other contentions raised by Respondent in its
answer, amendedanswer, and brief.
13 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order-herein shall, as provided in Sec 102.A8
of the Rules and Regulations; be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.