Naylor Type & Mats

National Labor Relations Board - Board Decisions

Apr 29, 1976

223 N.L.R.B. 1133 (N.L.R.B. 1976)

NAYLOR TYPE & MATS 1133
Houston Shopping News Co., d/b/a Naylor Type &
Mats and Houston Typographical Union No. 87,
a/w International Typographical Union, AFL-CIO.
Case 23-CA-5493
April 29, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On September 23, 1975, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, General Counsel and
Charging Party filed exceptions and supporting
briefs, and Respondent filed a brief in answer to the
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
Houston Shopping News Co., d/b/a Naylor Type
& Mats, Respondent herein, is engaged in the busi-
ness of setting type and preparing press materials for
customers who produce printed matter. Respondent
maintains both a hot type and a coldtype (photocom-
position) department. The choice of which method is
to be used in processing any given order is de-
termined primarily by the wishes of the customer.
However, where no method is specified or both de-
partments are capable of performing the work, Re-
spondent has the option of choosing the process to
be used. The employees in both departments are rep-
resented by Charging Party, hereinafter called the
Union, in a single bargaining unit. The last collec-
tive-bargaining agreement between the parties had
expired in August 1974 and negotiations for a new
contract were being conducted at the time of the
events herein.
Sometime during the fall of 1974, work began to
fall off in the hot type department and by February
1975 ' the problem of lack of work in that depart-
ment became acute. At Respondent's annual meeting
on February 19, the stockholders were told that the
Company was in financial difficulty and that 62 per-
cent of the loss was attributable to the hot type oper-
ation. One of the directors suggested that a solution
1 All dates herein are in 1975 unless otherwise indicated.
to the problem would be to sell the hot type depart-
ment to its employees. Accordingly; another stock-
holders' meeting was scheduled for February 25 to
consider that proposal.
At that meeting, Respondent's six stockholders de-
cided to offer to lease the hot type operation to the
employees of that department for $1,000 per month.
The stockholders approved a letter, which is set forth
in full in the Administrative Law Judge's Decision, to
the employees detailing the proposal. The letter re-
quired that the employees reach a decision on the
offer by Monday, March 3. There was no discussion
at either the February 19 or the February 25 meeting
of the Union's status as bargaining representative of
the employees involved.
On Thursday, February 27, the eight hot type em-
ployees and their foreman were called together and
each was handed a copy of the letter setting forth the
lease offer. The Union did not receive any advance
notice of this offer. In this regard, Respondent's pres-
ident testified that "[I]t never dawned on me to call"
the union president and "I still do not see anything
prohibiting me from doing the same thing again."
Following the meeting held on February 27, the
Union's chapel chairman notified the Union's presi-
dent, W. T. Samuels, of the lease offer. On March 3,
the employees counterproposed to Respondent that
they lease not only the hot type department but also
the photocomposition and camera departments. Re-
spondent never made any response to this offer. At a
bargaining session later that day, the Union was for
the first time officially notified of the offer by Re-
spondent and the employees' rejection thereof, but
the issue was not discussed.
Thereafter, on March 4, the hot type employees
were notified in writing that, effective the end of
their shift on March 5, the hot type department
would be reduced to three individuals, the foreman
and the two senior rank-and-file employees. One of
the six remaining employees exercised his right under
the contract to bump into the photocomposition de-
partment and the other five were laid off. Some, but
not all, of the employees were subsequently recalled.
The complaint alleged that Respondent violated
Section 8(a)(5) and (1) of the Act by failing to notify
the Union before offering to lease the hot type de-
partment to its employees, and by thereafter laying
off five of them. The complaint further alleged that
the March 5 layoff violated Section 8(a)(3) and (1) of
the Act. The Administrative Law Judge found, how-
ever, that the layoff was motivated purely by eco-
nomic considerations and therefore was not violative
of Section 8(a)(3) and (1) of the Act. We agree with
this finding. He further found that, since Respondent
had not firmly decided to subcontract the hot type
223 NLRB No. 174
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work, its offer to lease the operation to the employees
(which the employees rejected) did not violate Sec-
tion 8(a)(5) and (1) of the Act. We disagree.
The Administrative Law Judge based his conclu-
sion that no violation occurred on his finding that
Respondent's plan to lease the hot type operation
was never implemented. In our view, this test is erro-
neous . The unfair labor practice in this case is not
predicated on the employees' acceptance or rejection
of Respondent's offer. Rather, the violation is prem-
ised on Respondent's failure to notify and bargain
with the Union concerning a proposed change in its
operations which would radically alter the status of
bargaining unit employees. The concept that such a
direct and unilateral offer to the unit employees in
itself constitutes unlawful conduct was recognized by
the Board in prior cases involving this issue? In Blue
Cab Company, respondent implemented a policy of
leasing cabs to its drivers without first bargaining
with the union which had for many years been the
drivers' collective-bargaining representative. The
Trial Examiner,' in making his finding (which the
Board adopted) that this conduct violated Section
8(a)(5) and (1) of the Act, emphasized that:
At no time did the Respondents deign to include
the representatives of [the union] in any of their
deliberations on the lease agreements which
they proposed to the drivers on July 1. This re-
fusal to negotiate with the drivers' representative
on a change in operations in which they were so
vitally concerned was clearly a violation of Sec-
tion 8(a)(5) and I so find.4
Similarly, in Carnation Company the Board explic-
itly found that respondent violated Section 8(a)(5)
and (1) of the Act by "offering opportunity to [sic]
soliciting, and inducing its driver employees to enter
into individual contracts of employment with Re-
spondent in derogation of their bargaining represen-
tative . ..." S
Applying the foregoing principles to the facts here-
in, we find it immaterial that Respondent's proposal
to the employees was never implemented. This is so
because, in our view, Respondent had a duty to bar-
gain with the Union, as representative of its hot type
employees, before making the offer which, if accept-
ed, would have radically altered their status.' Thus,
2 See , e.g., Blue Cab Company and Village Cab Company, 156 NLRB 489
( 1965); Carnation Company, 172 NLRB 1882 (1968).
3 The title "Trial Examiner ' was changed to "Administrative Law Judge"
in 1972.
4 156 NLRB at 504.
3 172 NLRB at 1882.
6 In her dissenting opinion on this issue , Chairman Murphy has cited a
number of cases in which the Board has held that "a collective -bargaining
representative which stands mute in the face of notice of planned unilateral
action , whether given in advance or acquired from employees after the fact,
the fact that the employees subsequently rejected the
offer and that it was therefore never implemented
cannot serve to cure Respondent's dereliction in fail-
ing to notify and bargain with the Union before mak-
ing the offer.'
Furthermore, in dealing directly with its employ-
ees-by offering to lease a portion of its operation to
them without prior notification to the Union-Re-
spondent totally ignored the Union's obvious interest
in the proposed change in operations, and thus acted
unlawfully and in flagrant derogation of its statutory
duty to deal with its employees through their collec-
tive-bargaining representative. The failure on the
part of Respondent to recognize its statutory obliga-
tion is further illustrated by the above-quoted testi-
mony of its president which indicates that Respon-
dent never had any intention of consulting with the
Union about the lease proposal, and that such con-
sultation, in Respondent's view, was not required by
the Act.
Accordingly, we conclude that Respondent violat-
ed Section 8(a)(5) and (1) of the Act by failing to
notify the Union of its offer to lease the hot type
department to employees and we shall therefore or-
der that Respondent cease and desist from engaging
in such conduct.
CONCLUSIONS OF LAW
1. Houston Shopping News Co., d/b/a Naylor
Type & Mats, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Houston Typographical Union No. 87, a/w In-
ternational Typographical Union, AFL-CIO, is a la-
bor organization within the meaning of Section 2(5)
of the Act.
3. By failing to notify the Union of its intent to
offer to lease its hot type department to the employ-
ees thereof, Respondent has violated Section 8(a)(5)
and (1) of the Act.
4. Respondent has not engaged in any other un-
fair labor practices alleged in the complaint in the
instant case.
5. The unfair labor practice found above has an
is estopped from thereafter contending that the employer unlawfully refused
to discharge its bargaining obligation ." (Footnotes omitted .) In the instant
case , unlike in those cases cited by the Chairman , Respondent's unilateral
offer to lease its hot type department to its employees , which was made
without any advance notice to the Union either by the Employer or by the
employees , constitutes the kind of unilateral action which should not have
been taken by Respondent without prior notification to and bargaining with
the Union . Thus, it is clear that the Union did not have an opportunity to
bargain on the question of whether such an offer should have been made
prior to the unilateral action taken by Respondent.
7 The fact that the respondents' offers in Carnation Company, supra, and
Blue Cab Company, supra, were eventually implemented does not render
those cases inapposite here , where no such implementation occurred. For in
both cases the Board found that the employers had an obligation to bargain
before making the offer.
NAYLOR TYPE & MATS 1135
effect upon commerce within the meaning of Section
2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, Hous-
ton Shopping News Co., d/b/a Naylor Type & Mats,
Houston, Texas, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Failing to notify Houston Typographical
Union No. 87, a/w International Typographical
Union, AFL-CIO, of any intention to lease any por-
tion of Respondent's operation to employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer to bargain with the above-named labor
organization about any plan to lease any portion of
Respondent's operation to employees.
(b) Post at its Houston, Texas, place of business
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the Re-
gional Director for Region 23, after being duly
signed by Respondent's representative, shall be post-
ed by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that with respect to all
other unfair labor practices not found herein, the
complaint be, and it hereby is, dismissed.
CHAIRMAN MURPHY, concurring in part and dissent-
ing in part:
I agree with my colleagues insofar as they dismiss
the allegations of violations of Section 8(a)(1) and
(3). However, I cannot agree with their finding that
Respondent violated Section 8(a)(5) and (1) of the
Act by offering to lease a portion of its operation to
its employees without prior notification to the Union,
inasmuch as the Union had actual notice of the offer
but failed to make a timely protest or demand for
bargaining.
The record establishes that the hot type depart-
ment was in financial difficulty and that for econom-
ic reasons Respondent's board of directors decided
to offer to lease the department to its employees. It is
undisputed that on February 27, 1975, Respondent
called a meeting of the hot type employees and that
at that meeting copies of Respondent's written lease
proposal were distributed to the employees. The pro-
posal required the employees' answer by March 3.
The Union's chapel chairman at Respondent's plant
testified that after the meeting he told the union pres-
ident about the offer and took his copy of the pro-
posal to the union hall to give to the president before
going to work the next day. The chapel chairman
further testified that the chapel secretary prepared
the employees' counterproposal which the employees
gave Respondent on March 3. Respondent did not
reply to the counterproposal and, as far as the record
indicates, the matter was not pursued further.
The Union, although well aware that the offer re-
quired a response by March 3, neither protested
Respondent's action in making the offer nor de-
manded bargaining on the issue. In fact, when Re-
spondent mentioned the proposal at the March 3 ne-
gotiating session, the Union still failed to either
protest or demand bargaining, and apparently treat-
ed the whole issue as something of a joke.
The majority correctly states the general principle
that an employer has a duty to bargain with the em-
ployees' representative about a proposed change in
terms and conditions of employment which would
alter the employees' status. This principle, of course,
like all general statements, is not applicable to all
situations .9 In the instant case, my colleagues in the
majority totally ignore an important factual aspect-
that the Union had actual notice of Respondent's
proposal and not only failed to protest the unilateral
action and direct dealing with employees, but actual-
ly participated in preparing the employees' response
to such unilateral and direct offer. In these circum-
stances, I would find that the Union acquiesced in
Respondent's action and is not entitled now to com-
plain that Respondent unlawfully refused to bargain.
This view is no departure from precedent, as the
Board has held in the past that a collective-bargain-
9 The preceding statement is a variant of the paradox posed by the Cretan
prophet Epimenides in the sixth century, B.C., when he remarked "All Cre-
tans are liars." Similarly, if all general statements have exceptions then the
8 In the event that this Order is enforced by a Judgment of a United general statement that all general statements have exceptions must also have
States Court of Appeals , the words in the notice reading "Posted by Order exceptions . Fortunately, this dissent is not required to be also a dissertation
of the National Labor Relations Board " shall read "Posted Pursuant to a on logic , and, accordingly , no further discourse on this problem is neces-
Judgment of the United States Court of Appeals Enforcing an Order of the sary . For a short discussion of paradoxes in general , I refer the reader to 13
National Labor Relations Board ." Encyclopedia Britannica 356 (1974).
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing representative which stands mute in the face of
notice of planned unilateral action , whether given in
advance 10 or acquired from employees after the
fact," is estopped from thereafter contending that
the employer unlawfully refused to discharge its bar-
gaining obligation.
Indeed , in Hartmann Luggage Company 12 the
Board adopted without comment the Administrative
Law Judge's finding that a union's failure to protest a
planned layoff of which it received no advance no-
tice from the employer and got notice from the em-
ployees only 4-1/2 days prior to its implementation
constituted a waiver of the union's right to demand
bargaining. That is, in all material respects, analo-
gous to the situation now before us.
Accordingly, I would find in the instant case that
the Union failed to exercise due diligence in claiming
its right to bargain, and I would dismiss the com-
plaint in its entirety.
HI See, e.g., Kentron of Hawaii Ltd, Subsidiary of LTV Aerospace Corpora-
tion, 214 NLRB 671 (1974).
11 See, e .g., A-V Corporation, 209 NLRB 451 (1974); Hartmann Luggage
Company, 173 NLRB 1254 (1968).
12 Supra.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail to notify Houston Typo-
graphical Union No. 87, a/w International Ty-
pographical Union, AFL-CIO, of any decision
to offer to lease any portion of our operation to
employees.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce our employees
in the exercise of rights guaranteed by Section 7
of the National Labor Relations Act.
WE WILL offer to bargain with above-named
labor organization about any plan to lease any
portion of our operation to our employees.
HOUSTON SHOPPING NEWS Co., d/b/a
NAYLOR TYPE & MATS
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN , Administrative Law Judge: The
charge in this case was filed on March 5 , 1975.1 The com-
1 Dates are 1975 unless otherwise indicated.
plaint was issued on May 23. The hearing was held in
Houston, Texas, on July 23. The issue litigated was wheth-
er Respondent violated Section 8(a)(3) and/or Section
8(a)(5) of the National Labor Relations Act, as amended,
by offering to lease the hot type portion of its operation to
employees represented by the Charging Party without first
bargaining with the Charging Party and by thereafter lay-
ing off five of them when they declined. For the reasons set
forth below, I find Respondent did not commit either of
the unfair labor practices alleged.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
a brief filed by Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Texas corporation, is a composition
house in the printing industry in Houston. As such, it sets
type and prepares other press materials for customers who
produce printed material . During the year just prior to is-
suance of the complaint herein, it sold goods valued in
excess of $50,000 to firms in the State of Texas each of
which did $50,000 worth of business directly outside the
State of Texas.
11. THE UNFAIR LABOR PRACTICES
A. Facts
1. Background
The Charging Party has represented a unit of
Respondent's employees since 1936. The most recent con-
tract expired on August 31, 1974. At the time of the hearing
herein, Respondent and the Charging Party were bargain-
ing for a new contract. There is no contention in this case
that Respondent has violated the Act by its conduct in
connection with that bargaining.
Respondent calls its hot type operation the composing
room. It calls its coldtype operation the photocomposition
department. The unit which is represented by the Charging
Party covers the employees in both departments. (Employ-
ees in the camera department are represented by another
labor organization.)
In July and August 1974 Respondent filed RM and UC
petitions in which it sought to divide the existing unit into
two, one limited to composing room employees and the
other to photocomposition department employees. The
cases were consolidated and a hearing was held on August
21, 1974. The next day the Charging Party filed a refusal-
to-bargain charge against Respondent in Case 23-CA-
5227. The Acting Regional Director issued his Decision
and Order dismissing the UC petitions on October 1, 1974.
On the same day he issued a dismissal letter in Case 23-
RM-3 10 which said, in pertinent part:
As a result of the investigation, I find that the petition
herein raises no real question concerning representa-
NAYLOR TYPE & MATS
tion within the meaning of Section 9(c)(1) of the Act.
The investigation of unfair labor practices Case No.
23-CA-5227 reveals that the Employer-Petitioner
herein has at all times since June 28, 1974, refused to
meet and bargain with Houston Typographical Union
No. 87 and a complaint will shortly issue, absent set-
tlement, alleging violations of Section 8(a)(5) and (1)
of the Act. The orderly procedure of collective bar-
gaining under the Act requires that an employer be
bound by its employees' choice of representative dur-
ing the period when negotiations are, or should be, in
progress as well as during the period of litigation of
the bona fides of an employer's bargaining efforts. I
am, therefore, dismissing the petition in this matter.
On October 4, 1974, the Acting Regional Director ap-
proved the Charging Party's request to withdraw its charge
in Case 23-CA-5227. The Charging Party filed the request
pursuant to an out-of-Board settlement in which Respon-
dent agreed to meet and bargain with the Charging Party
for a new contract covering the historic single unit.
2. Foreground
Whether Respondent processes a particular order by the
hot type or the coldtype method depends, primarily, on the
wishes of the customer. Sometime, when the customer has
not specified one method or the other and the requisite
type faces are found in both departments, Respondent has
a choice. Work began falling off in the composing room in
the fall of 1974 to the extent that Respondent instructed its
salesmen to push hot type, and some jobs which could have
been handled more efficiently by photocomposition were
done in the composing room in order to keep the hot type
employees busy. The lack of work for the composing room
became acute by February 1975. When the annual stock-
holders and directors meeting was held on February 19, the
situation was the only nonroutine item of business on the
agenda. As the minutes of that meeting reflect:
The Board of Directors discussed the serious financial
plight of the company. Financial figures were made
available to all those present. Miss [Elizabeth] Nalle
[the president], stated, based on the financial informa-
tion, that in order to reverse the losses the company is
suffering, expenses would have to be reduced in the
company's Hot Metal operation where the substantial
amount of the revenue is being lost (62%). Mr. [James]
Wesley [a director] proposed the sale of that depart-
ment to its employees. After a discussion it was decid-
ed to consider this and call a Stockholders meeting on
February 25, 1975.
The Charging Party's status as bargaining representative of
the employees was not discussed.
The stockholders met as scheduled on February 25. (All
five of Respondent's directors are stockholders. The only
stockholder who is not a director is Sharon Burns, secre-
tary of the corporation. Thus the same six persons who
participated in the February 19 discussion made the Feb-
ruary 25 decision.) They approved the following document
for presentation to hot type employees on February 27:
1137
We have called you together today because we have a
proposal to make to you.
Since we feel a responsibility toward each of you and
since we consider this composing room the best group
of hot type experts in Houston, we want to give you
the opportunity to go into business for yourselves with
NO CAPITAL OUTLAY.
We propose to lease you this composing room with all
equipment in place at less than it costs Naylor and
give you the chance to prove that there's money to be
made in addition to your salaries.
There is something over 5200 sq. ft. here and our pro-
posal is to lease it to you at approximately 19 [cents]
-a flat $1000 per month. This would include your
space, all utilities (except phone), free parking, janito-
rial service and all the equipment as it now stands. In
addition, to help you get started, we would offer it to
you for the first thirty days FREE.
You would form and name your own company, con-
trol your own delivery, billing and bookkeeping-be a
separate company entirely.
You would sell direct to customers. We are sure each
of you has friends and you know printers and other
profitable sources from which you could draw busi-
ness. In addition, of course your prices would neces-
sarily be competitive so Naylor would be a built-in
customer and one of your largest sources of revenue.
We have a few customers from whom we must insist
you do not solicit business: Shell, 0 & M, McCann,
Prudential and Conoco (through Floyd Hoffman
only)
All things being equal this business will come to you
anyway through Naylor so it would be better not to
upset our present relationships. We have numerous
other hot metal customers and you may feel free to
solicit this business direct.
We would leave all tools, repair parts, etc. right where
they are for your use-when replacements become
necessary you would make them yourselves. We
would take inventory of metal and papers and give
you our case lot breaks and allow you to pay this out
easily at 10% per month after the first FREE 30 days
mentioned.
Since we have always had a full-time machinist and
kept the equipment in excellent condition, we ask that
you do the same which is just good business on your
part.
We will be glad to furnish any credit information
which we might have on your future customers and
will assist you in any way we can to get off to a good
start.
You may at times wish to `farm-out' to Naylor and if
you care to offer-and accept-any courtesy trade
discounts with us, we are sure we can come to a mutu-
ally fair arrangement.
There are perhaps other questions which you would
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
care to discuss but in the meantime we suggest you
talk this over among yourselves and plan to meet with
us noon Monday , March 3, to make some definite de-
cision.
We believe this to be a great opportunity for you and
again assure you we will help in any way possible.
All nine of Respondent's hot type employees were called
together in the composing room on Thursday , February 27.
In order to forestall discussion , Miss Nalle handed each of
them a copy of Respondent 's proposal in lieu of an oral
presentation . As requested , the employees were ready by
Monday , March 3 , when they handed in the following writ-
ten counterproposal:
The composing room employees have discussed your
proposal of February 27, 1975. It was difficult to eval-
uate in the short time allowed us.
We feel that in order to offer customers a complete
competitive service it is necessary to offer hot type,
photocomposition and camera all in one package. Be-
cause of this we propose the same 19 [cents] per sq. ft.
but include the composing room, photocomposition
department and camera department . We do not have
the total square footage at this time.
(In the interim , the Charging Party's chapel chairman in
Respondent's plant had informed the Charging Party of
Respondent's proposal .) Respondent made no response.
That evening Respondent's and the Charging Party's
negotiators met as part of their on -going efforts to reach an
agreement to replace the contract which expired in August
1974. Respondent's attorney gave the Charging Party's
president copies of Respondent 's proposal to its hot type
employees and their counterproposal and asked if he knew
anyone who might be interested in leasing the hot type
portion of Respondent 's operation . The Charging Party's
president took the remark as a joke . Consequently, nothing
more was said about the matter , either at that meeting or
subsequently.
On March 4 Respondent handed the following notice to
each of its hot type employees:
EFFECTIVE WITH THE SHIFT ENDING MARCH 5 . 1975 [the end of
Respondent's payroll period] the staff in the Hot Met-
al Department is being reduced to the following 3
men:
Joe Janca
Albert Broussard
Albert Sralla
In addition , regular shift hours will be established as
9AM-5PM. All other employees will receive pay
checks Wednesday, March 5, 1975, at 6 PM and such
checks will include all accrued vacation to date.
HOUSTON SHOPPING NEWS COMPANY
DBA NAYLOR TYPE & MATS
Janca was the foreman and, as such , entitled under the
Charging Party's rules to be retained out of seniority.
Broussard and Sralla were the two senior rank -and-file em-
ployees. Of the other six, one man exercised his right to
bump into a job in the photocomposition department, and
the other five were laid off as scheduled. None of the latter
had photocomposition skills.
At the time of the layoff, only one of the hot type em-
ployees was not a member of the Charging Party. He was
one of the five men laid off. Of some 12 or 13 coldtype
employees, only 4 were members of the Charging Party.
Some of the employees laid off on March 5 were recalled
as business in the hot type operation picked up for a while.
(Apparently three were recalled, although the record is not
clear on this point. What is clear is that recalls have been
by job classification and not seniority, since Clarence
Turner, a floorman and the senior laid-off employee, has
not worked since March 5 while Cecilito Garcia, a linotype
operator, has. Turner declined a job as a repro man be-
cause it did not lie within his competence.) At the time of
the hearing , business had again dropped off to the point
where Broussard, the senior hot type employee, was being
retrained in coldtype techniques.
Respondent called the Charging Party as a source of new
employees prior to the events of February 19 through
March 5. It has continued to do so since. Not all employees
hired in photocomposition since March 5 have been ob-
tained through the Charging Party.
B. Analysis and Conclusions
1. Section 8(a)(3)
The General Counsel contends the March 5 layoff vio-
lated Section 8(a)(3) and (1) of the Act because
Respondent 's motive was to get rid of the Charging Party
as the bargaining representative of its employees . He would
have me find the evidence to support such a finding princi-
pally in the ratio of union members to nonmembers in the
overall unit before and after the layoff when viewed
against Respondent 's unsuccessful effort in the summer of
1974 to split the unit . In this respect , he argues , contrary to
normal Board law, that membership can and should be
equated with a desire to be represented by the Charging
Party. He also attaches significance to the fact that the
laid-off employees were given their accrued vacation pay,
usually a sign of a complete termination of the employ-
ment relationship in the printing industry rather than a
layoff from which recall is anticipated . (The fact that laid-
off employees have , in fact, been recalled when work with-
in their individual competences was available gainsays the
latter point, of course.) I find this argument unpersuasive.
Rather , the uncontroverted and credited evidence of the
economic situation which underlay and the deliberations
which led up to the decision to reduce the complement of
hot type employees by two-thirds, coupled with the fact
Respondent has made no effort to evade its duty to bar-
gain with the Charging Party for a new contract since Case
23-CA-5227 was settled , is so overwhelming as to permit
only one conclusion . I find Respondent 's motive was eco-
nomic and not discriminatory within the meaning of the
Act. Therefore, Respondent did not violate Section 8(a)(3)
and (1) when it laid off five employees on March 5, 1975.
2. Section 8(a)(5)
Respondent admittedly did not notify the Charging Par-
NAYLOR TYPE & MATS 1139
ty of what it was about to do before it made its lease pro-
posal to its hot type employees on February 27 . As Miss
Nalle testified, "It never dawned on me to call" the Charg-
ing Party's president . The General Counsel contends that
Respondent's failure to do so constitutes an 8(a )(5) and (1)
violation of the Act.
The General Counsel relies on the Fibreboard line of
cases , citing, in addition to Fibreboard Paper Products Cor-
poration, 138 NLRB 550 (1962), Blue Cab Company and
Village Cab Company, 156 NLRB 489 (1965), and Carna-
tion Company, 172 NLRB 1882 ( 1968). They are inapposite.
In each of them an executed decision to subcontract work
formerly done by employees without first bargaining with
their representative was found to be a violation of Section
8(a)(5) and (1). Here, there has been no subcontracting. In
fact, it cannot even be said that a firm decision by Respon-
dent to subcontract its hot type work has reached the exec-
utory stage , for all that happened was a rejected offer to
lease the operation to the employees . There is no evidence
Respondent pursued the matter any further after the em-
ployees countered with an offer Respondent found unac-
ceptable . I find , therefore, Respondent has not violated
Section 8(a)(5) and ( 1) by offering to lease its hot type
operation to its employees without first notifying the
Charging Party and by thereafter laying off five of them.
Upon the foregoing findings of fact , and upon the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. Houston Shopping News Co., d/b/a Naylor Type &
Mats, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Houston Typographical Union No. 87, a/w Interna-
tional Typographical Union , AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The allegations of the complaint that Houston Shop-
ping News Co., d/b/a Naylor Type & Mats , violated Sec-
tion 8(a)(1), (3), and (5) of the Act have not been sustained.
[Recommended Order for dismissal omitted from publi-
cation.]