Star Publishing Co.

National Labor Relations Board - Board Decisions

Dec 14, 1970

187 N.L.R.B. 210 (N.L.R.B. 1970)

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Star Publishing Company, Publisher of "The Niles
Daily Star" and Printing Pressmen's Union No.
151, International Printing Pressmen and Assist-
ants' Union of North America, AFL-CIO. Case
7-CA-7663
December 14, 1970
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On April 10, 1970, Trial Examiner Louis Libbin
issued his Decision in the above-entitled case, finding
that the Respondent had engaged in certain unfair
labor practices and recommending that it cease and
desist therefrom, and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
He also found that the Respondent had not commit-
ted other unfair labor practices alleged in the
complaint, and recommended that those allegations
be dismissed. The General Counsel and the Respon-
dent filed exceptions to the Trial Examiner's Decision
and supporting briefs, and the Respondent filed an
answering brief. The Respondent also filed (1) a
motion to dismiss exceptions of the General Counsel
and to strike his supporting brief on the ground that
they do not comply with Section 102.46(b) and (c) of
the National Labor Relations Board's Rules and
Regulations, Series 8, as amended, to which the
General Counsel filed an opposition; and (2) a request
for oral argument.
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 this case to a three-member
panel.
The motion and request by the Respondent are
hereby denied, as the General Counsel's exceptions
and brief are in substantial compliance with the
foregoing provisions of the Board's Rules and
Regulations, and the record, including the exceptions
and briefs, adequately presents the issues and conten-
tions of the parties.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case,
including the exceptions and brief, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner only to the extent that they are
consistent with its Decision herein.
We find, contrary to the Trial Examiner, that
Respondent was discriminatorily motivated in select-
ing Kramer for termination.
The record shows that Kramer was the most
outspoken and chief union protagonist in Respon-
dent's editorial department. He was the one who
contacted the Union initially, testified for the Union
at representation hearings, and served as a union
observer at the election. With the election won and
the Union certified on September 19, 1969, Kramer
filled the post of chief negotiator in subsequent
contract negotiations with the Respondent. These
negotiations began during the latter part of October
and continued into November. Five weekly meetings
were held. Following the last meeting on Friday,
November 28, Kramer was laid off summarily on
orders from Executive Director Victor Spaniolo and,
contrary to past practice, without notice to or
consultation with Managing Editor Hendricks,
Kramer's immediate superior, who released him. The
layoff or termination of Kramer was accomplished in
the following manner: Early in the afternoon of
November 28 Hendricks was called into Spaniolo's
office and was told by Spaniolo that there was to be
no discussion or debate as to what Spaniolo was about
to say. Spaniolo then read from a slip of paper that
Kramer was being laid off because the Company
could not afford the luxury of an education reporter.
Late that afternoon Kramer was called into Hen-
dricks' office and was told that he was being laid off
immediately for economic reasons. He was given 2
weeks' pay in lieu of notice. Kramer cleaned out his
desk, as directed by Hendricks, and went home.
Hendricks testified that prior to the September
election he had had a conversation with Respondent's
publisher, Lawrence J. Plym, during the course of
which the latter said "he was aware that Kramer was
the organizer of the Union," that Hendricks should
not be afraid to discharge Kramer if Hendricks felt
there was cause to do so, and that Hendricks should
not "be afraid of an unfair labor practice charge." In a
subsequent conversation with Plym, at which General
Manager Backer and Respondent's attorney, Murray
Campbell, were present, Plym said, according to
Hendricks, that "we should not be afraid to commit
an unfair labor practice, if we felt we were going to
lose the election." Plym suggested that committing
unfair labor practices would stall the election and said
that he would agree with that course of conduct if it
appeared that Respondent was going to lose the
election. Plym gave as an example of a successful
antiunion campaign the Kawneer Company plant in
Kentucky where management had deliberately com-
mitted unfair labor practices and stalled an election
for 10 years. Although the Company ultimately
admitted that it had been wrong, its punishment
amounted to no more than "getting their hands
slapped."
The above testimony of Hendricks has not been
187 NLRB No. 27
STAR PUBLISHING CO. 211
denied by Plym or other persons present at the second
conversation and stands uncontradicted on this
record.
We cannot agree with the Trial Examiner that
testimony of this nature is not entitled to substantial
weight in determining whether Respondent was
discriminatorily motivated when it summarily re-
leased the Union's chief negotiator after five unsuc-
cessful bargaining meetings. The fact that Hendricks
did not know the legal definition of an unfair labor
practice does not detract from Plym's use of that term.
Certainly, Respondent's publisher would be in a
position to know that discharging an employee for
union activity was an unfair labor practice. Nor does
the fact that no specific unfair labor practice was
mentioned by Plym derogate from his explicit
agreement to a violation of this statute by company
officials if it would prevent the Union from winning
an election. In our opinion, such evidence is relevant
and persuasive in assessing Respondent's motivation
in Spaniolo's direction to Hendricks to terminate
Kramer.
Respondent contends that economic necessity
required the layoff of Kramer. It appears that
Respondent had suffered a loss of 13 percent of its
subscribers during the month of July 1969, as a result
of a price increase. The reduction in circulation
continued at a lower rate for the next 5 months and
Respondent's income dropped drastically. We need
not and do not decide whether economic necessity
required the layoff of an editorial department
employee on November 28. In view of the evidence set
forth above, the fact that Kramer was senior to three
other employees in that department, the uncontro-
verted testimony that he was capable of and, in fact,
did general assignment work as well as educational
reporting, the fact that, even though the dismissal was
allegedly economically motivated, Kramer was given
severance pay instead of notice, the formality and
summary nature of his dismissal, and Respondent's
expressed hostility to union organization, we find that
Kramer was selected for layoff discriminatorily
because of his efforts on behalf of the Union. The
Respondent thereby violated Section 8(a)(3) and (1)
of the Act.
As for the 8(a)(5) violation found by the Trial
Examiner, an employer is, of course, generally
proscribed from unilaterally changing wages and
working conditions. Thus, as the Supreme Court
indicated in N.L.R.B. v. Katz, 369 U.S. 736, an
employer's unilateral change in conditions of employ-
ment "is a circumvention of the duty to negotiate
which frustrates the objectives affecting 8(a)(5) much
as does a flat refusal." On the other hand, it is also
1 Fibreboard Paper Products Corporation v. N.L.R.B., 379 U.S. 203
(concurring opinion).
clear that "not . . every managerial decision which
necessarily terminates an individual's employment is
subject to the duty to bargain."' This case essentially
involves the discharge of a single employee, which we
have found to be a violation of Section 8(a)(3). As to
him, the remedy would be the same regardless of
whether the Board additionally found a violation of
Section 8(a)(5). Whether the reassignment of the
duties of this one employee rises to the status of a
"reorganization," as the Trial Examiner found, is a
close question 2 which our Order herein, that Kramer
be reinstated to the performance of all his prior duties,
renders largely moot. In all the circumstances,
therefore, the Board does not adopt the 8(a)(5) finding
of the Trial Examiner.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the
meaning of Section 2(2) of the Act, and is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. By discharging Robert H. Kramer because of
his union activities the Respondent has discouraged
membership in the Union in violation of Section
8(a)(3) of the Act.
3. By the above conduct the Respondent has
interfered with, restrained, and coerced employees in
the exercise of their Section 7 rights in violation of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies
of the Act.
Having found that the Respondent discharged
Robert H. Kramer because he engaged in union
activities, we shall order the Respondent to offer him
immediate and full reinstatement to his former job
without prejudice to his seniority or other rights or
privileges and make him whole for any loss of
earnings he may have suffered as a result of his
unlawful discharge, by payment to him of a sum of
money equal to the amount he would have earned
from the date of his discharge to the date of an offer of
reinstatement less net earnings, if any, during such
period, to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, and including interest at the
2 See Ordont Orthodonic Laboratories, 156 NLRB 49, 64-66. Compare
N. L. R. B. v. Dixie Ohio Express Company, 409 F.2d 10 (C.A. 6).
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rate of 6 percent per annum in the manner set forth in Respondent to insure that said notices are not altered,
Isis Heating & Plumbing Co., 138 NLRB 716. defaced, or covered by any other material.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Star Publishing Company, Publisher of "The Niles
Daily Star," Niles, Michigan, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organi-
zation of its employees, by discrimination in regard to
their hire, tenure, or any other terms and conditions of
employment.
(b) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
right to self-organization, to form labor organizations,
to join or assist the above-named Union, or any other
labor organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the
extent that such right may be affected by the proviso
to Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Offer to Robert H. Kramer immediate and full
reinstatement to his former position, without preju-
dice to his seniority or other rights and privileges
previously enjoyed.
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of
his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to
the Board or its agents , for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its place of business in Niles, Michigan,
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly
signed by the Respondent's representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
(e) Notify the Regional Director for Region 7, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "POSTED BY
ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Print-
ing Pressmen's Union No. 151, International
Printing Pressmen and Assistants' Union of North
America, AFL-CIO, or any other labor organiza-
tion of our employees, by discrimination in regard
to their hire, tenure, or any other terms and
conditions of employment, except as authorized
by the proviso to Section 8(a)(3) of the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the right to self-organization, to form
labor organizations, to join or assist the above-
named Union, or any other labor organization, to
bargain collectively through representatives of
their own choosing, to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any and all such activities , except to the
extent that such right may be affected by the
proviso to Section 8(a)(3) of the Act.
WE WILL offer to Robert H. Kramer immediate
and full reinstatement to his former position,
without prejudice to his seniority or other rights
and privileges, discharging, if necessary, employ-
ees hired since his termination; and WE WILL
make up to him the pay that he lost, with 6-percent
interest.
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the
United States of his right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge from
the Armed Forces.
STAR PUBLISHING CO 213
Dated By
STAR PUBLISHING
COMPANY, PUBLISHER OF
"THE NILES DAILY
STAR"
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
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
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 500 Book Building, 1249 Washington Boule-
vard, Detroit, Michigan 48226, Telephone
313-226-3200
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis LIBBIN , Trial Examiner Upon charges filed on
December 8, 1969 , and January 7, 1970, by Printing
Pressmen 's Union No 151, International Printing Press-
men and Assistants ' Union of North America , AFL-CIO,
herein called the Union , the General Counsel of the
National Labor Relations Board , by the Regional Director
for Region 7 (Detroit , Michigan), issued a complaint, dated
August 22 , 1969, against Star Publishing Company,
Publisher of "The Niles Daily Star," herein called the
Respondent With respect to the unfair labor practices, the
complaint as amended at the hearing alleges, and
Respondent 's answer as subsequently amended denies, that
Respondent violated Section 8(a)(1), (3), and (5) of the Act
by its conduct in discharging or laying off employee Robert
Kramer on November 28, 1969
This case was tried before me at Niles, Michigan, on
March 12, 1970 All parties appeared and were given full
opportunity to participate in said trial Thereafter , only the
Respondent filed a brief, which I have fully considered For
the reasons hereinafter indicated , I find that Respondent
violated only Section 8 (a)(l) and (5) of the Act
Upon the entire record in the case ,[ and from my
observation of the demeanor of the witnesses, I make the
following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Star Publishing Company, a Michigan corporation,
is engaged in the city of Niles, Michigan, in the publication
of a daily newspaper, "The Niles Daily Star " During the
calendar year 1969, a representative period, Respondent
had a gross volume of business in excess of $500,000 In
addition, Respondent also during that period subscribed to
I Errors in the transcript have been noted and corrected
2 Unless otherwise indicated the factual findings herein are based on
an interstate news service, published nationally syndicated
features, and advertised nationally sold products which
brought it revenues exceeding $50,000 directly from outside
the State of Michigan
Upon the above admitted facts, I find, as Respondent
further admits, that Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer admits, the record
shows , and I find , that the Union named in the caption is a
labor organization within the meaning of Section 2(5) of the
Act
III THE UNFAIR LABOR PRACTICESZ
A Introduction, the Issues
Robert Kramer started working for Respondent in July
1968 as a reporter with concentration on education and
schools By September, he was given the title of education
writer In this capacity he was responsible for covering the
meetings and general news happenings of 12 school
districts, 2 junior colleges, and 1 county intermediate school
district, and also for developing features and stones for
these areas He spent about 60 to 70 percent of his time in
performing these duties of an education writer and the
remainder of his time on noneducation assignments With
the people with whom he dealt, he enjoyed a reputation as a
specialist in education
In May 1969, he and other editorial employees discussed
certain working conditions which they felt needed correc-
tion As a result of a suggestion that a union might be the
answer, Kramer contacted the president of the Consolidat-
ed Union Council in Niles to inquire if a union
representative would be willing to talk to the group as a
whole A few days later, Robert Obenour, an International
representative of the Charging Union, contacted Kramer
and arrangements were made for a meeting of the editorial
department employees to be held in June at the home of
one of the employees On June 24, the Union filed with the
Board's Regional Office a representation petition for an
election Kramer testified for the Union at the subsequent
representation hearing and sat and consulted with the
union representative throughout the proceedings Respon-
dent's representatives were also present at this hearing On
August 14, 1969, the Board's Regional Director issued a
decision in which he directed that an election be held in an
appropriate unit of "all editorial department employees" of
Respondent with certain specified exclusions Kramer
acted as the Union's observer at the election which was won
by the Union On September 19, 1969, the Union was
certified as the bargaining representative of the editorial
department unit
Thereafter, the editorial unit elected a negotiating
committee with Kramer as chief negotiator A notice of the
elected officers, with Kramer's designation as chief
negotiator, was posted on the bulletin board of the
newsroom Kramer then did some research which resulted
admissions and undisputed testimony
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the drafting of the Union's first contract proposals.
Contract negotiations with Respondent began in the latter
part of October and weekly sessions were held thereafter.
The Union's negotiating team consisted of Kramer, two
employee officers, and International Representative Oben-
our; Respondent was represented by its Attorneys Byron
and Campbell and Executive Director Spaniolo. Kramer
was the chief spokesman for the Union's negotiating team,
while Byron was the chief spokesman for Respondent. On
Friday, November 28, 1969, after five bargaining sessions
had been held without final agreement having been
reached, Kramer was summarily laid off, without any prior
notice or warning and without prior notice to or
consultation with the Union.
The principal issues in this proceeding are, as the
complaint alleges, (1) whether the layoff or employment
severance of Kramer was discnminatonly motivated
because of his union and concerted activities in violation of
Section 8(a)(1) and (3) of the Act; (2) whether Respondent
substantially altered the composition of the bargaining unit
by its layoff of Kramer in violation of Section 8(a)(1) and
(5) of the Act; and (3) whether Respondent's conduct in
acting unilaterally, without prior notice to or bargaining
with the Union, violated Section 8(a)(1) and (5) of the Act.
B. The Employment Severance of Kramer
On Friday afternoon, November 28, 1969, Executive
Director Spaniolo called Managing Editor Hendricks into
his office, stated that there would be no discussion or
debate on what he was about to say, and read a statement
that Kramer was being laid off because "the company
could no longer afford the luxury of an Education
Reporter." He also stated that this did not affect Kramer's
position as a member of the bargaining unit and that if the
job ever opened up again Kramer would have to be offered
that job. Hendricks agreed to inform Kramer of the layoff.
Spaniolo also stated that he would have Kramer's checks
made up, one for the past week's work and one for
severance pay in lieu of any severance policy. That evening
Hendricks, who was Kramer's immediate superior, called
Kramer into his office and told him that he was laid off.
Hendricks stated that he had been called in by Spaniolo
and related what Spaniolo had told him, as hereinabove set
forth. Kramer asked when he was to stop work because he
was planning several stories. Hendricks stated that he was
told that it was effective immediately and that Kramer
should clean out his desk. He further stated that Kramer
should use Hendricks' name for a reference and that he
would help him in getting another job if he needed it.
Kramer asked whether this was a temporary move or
whether Hendricks believed it to be a long-range move.
Hendricks replied that he did not believe that Kramer
would be called back. Hendricks gave Kramer the two
checks, one of them stating that it was 2 weeks' pay in lieu
of notice .3
Kramer cleaned out his desk and went home. He has
never been recalled. Admittedly, neither Kramer nor
3 There is no record evidence to support the statements in Respondent's
brief that Kramer was "given the choice of working the ensuing two weeks,
Hendricks had had any prior notice or warning that
Kramer's layoff was forthcoming or even contemplated.
C. Respondent's Defenses
Respondent contends that Kramer was laid off for
economic reasons because the editorial department was
overstaffed and that the position of education reporter has
not been abolished. Respondent's counsel admitted at the
instant trial that Respondent acted unilaterally without
prior notice to or consultation with the Union.
In support of its defense, Respondent relies primarily on
the following testimony of Executive Director Spaniolo:
When Spaniolo became executive director in September
1969, he made a detailed study of each department of
Respondent, concluded that the editorial department and
the front office were overstaffed, and reported these
conclusions to Respondent's board of directors. He decided
not to fill any vacancies which might occur in the front
office. Thus, when the number one bookkeeper gave notice
on October 15, she was not replaced when she subsequently
left. The paper was losing money because of a substantial
drop in circulation due to a price increase and a new
requirement for advance monthly payments from subscri-
bers, both instituted in the spring of 1969. Although surveys
conducted by the National Editorial Association and the
Inland Daily League showed that after a price increase or
radical change a paper will suffer from 11- to 15-percent
decrease in circulation the first month and within 6 months
would come back to a 4-percent net loss, Respondent's loss
did not follow this pattern. Respondent's circulation
decreased by about 1,300 subscribers during the first
month, a loss of about 13 percent, and by about 1,800
subscribers during the 6-month period from July 1, 1969, to
January 1, 1970. Respondent failed to recapture any of its
circulation and continued to lose money.
In the light of this economic condition where Respon-
dent's income had dropped drastically, Spaniolo concluded
that the editorial department was overstaffed. He then had
each reporter give him their clippings and what they had
written at the end of each week during the period from the
middle of October to the middle of November. This
reflected the reporters' production for that month. Based
on an examination of these clippings, it became apparent to
him that there were not many areas where he could cut
down. In the light of his past experience with other papers
of comparable size which did not have an education
specialist, "it was quite obvious that, in the light of our
income, we could not afford to have an education
specialist."
It was this conclusion which prompted the layoff of
Kramer. Thereafter, the educational activities which had
been covered by Kramer were assigned to other staff
members who covered them in addition to their usual
assignments , with some educational areas not being
covered to the same extent as Kramer had done. The
position of an educational specialist, held by Kramer, has
not been filled.
for which he would be paid , or receiving cash for two weeks services, at
that time, in lieu of notice of layoff."
STAR PUBLISHING CO. 215
D. Concluding Findings
I. As to the 8(a)(3) allegation
There is no substantial dispute of the facts, as hereina-
bove set forth in the testimony of Spamolo. Kramer himself
admitted that an education writer was an "innovation" for
Respondent although larger papers traditionally have it.
Hendricks, who supervised the editorial department and
testified as a witness for the General Counsel , admitted that
three other staff members were covering some education
assignments even when Kramer was employed , that his
employees were for the most part interchangeable in the
different tasks and assignments , and that the three above-
mentioned staff members thereafter absorbed the educa-
tion assignments which Kramer had been covering.
In an effort to rebut the defense of an economic need for
a layoff, the General Counsel adduced testimony from
Hendricks that in January 1969 he and Backer, who was
Respondent 's general manager prior to Spamolo becoming
executive director, had prepared a budget for the editorial
department which included raises and the hiring of a new
employee, that he knew he was operating under his budget
through July, and that in consultation with Backer he hired
a new employee in September as sports writer and general
reporter. Needless to say, all this occurred before Spaniolo
became executive director and undertook his detailed
investigation. Spaniolo testified that he was not familiar
with this previously prepared budget and that his
investigation was made without regard to it. In any event,
Hendricks admitted on cross-examination that this budget
had been made up in contemplation of a payroll of 10
employees in the editorial department, that from the spring
to the summer of 1969 there were only nine and sometimes
eight employees in the department, and that this "very
definitely" was one of the reasons why he never exceeded
his budget. Hendricks also testified that he and Spaniolo
had interviewed some reporters in contemplation of filling
an open slot and that Spaniolo had asked one of these
reporters if he would accept a job if offered. He admitted
however that these reporters in fact were never employed
by Respondent. Spaniolo explained that his interview was
for the purpose of building up a backlog of people in case
they were needed, that their sports writer might have to go
into the service, and that they were merely talking in
general terms when he asked a reporter if he was prepared
to take the job if offered.
The strongest evidence adduced by the General Counsel
in support of this allegation is the testimony of Hendricks
(1) that during the course of a conversation in September
with Lawrence Plym, Respondent's president, concerning
the business and the upcoming union election , Plym told
Hendricks that , if there was any cause to discharge Kramer,
he should not be afraid to discharge him because of the fact
that he might be committing an unfair labor practice; and
(2) that in a second conversation prior to the election Plym
stated in the presence of Hendricks, Backer, and Attorney
Campbell that they should not be afraid to commit an
unfair labor practice if they felt they were going to lose the
election and gave an example of a company which stalled
an election for 10 years by deliberately committing unfair
labor practices . However the force of this testimony was
blunted, and any adverse inferences diffused, when
Hendricks admitted on cross-examination that there was no
general discussion of what constituted an unfair labor
practice, that he (Hendricks) did not know what constituted
an unfair labor practice , that Plym made no suggestions
that they do anything to induce or intimidate the employees
to vote against the Union, and that it would be fair to say
that what Plym said was that, if Hendricks found any cause
which warranted Kramer 's discharge during the pendency
of the election, he should not be deterred in his decision to
discharge him because of the fear of committing an unfair
labor practice. The fact remains that after the Union won
the election , to which Respondent filed no objections,
Respondent proceeded to hold weekly negotiating sessions
with the Union for a collective -bargaining agreement and
five sessions had been held prior to Kramer's layoff . In view
of the General Counsel 's admission at the instant trial that
he was willing to assume that Respondent was not
bargaining in bad faith , I must assume , as I do, that
Respondent bargained in good faith during the sessions
which were held prior to Kramer's layoff.
Upon consideration of all the foregoing and the entire
record as a whole , I find that the General Counsel has not
sustained his burden of proving that Kramer 's employment
severance , whether it be termed a discharge or a layoff is
immaterial , was discriminatorily motivated in violation of
Section 8(a)(1) and (3) of the Act. I will accordingly
recommend the dismissal of this allegation.
2. As to the 8(aX5) allegations
The unit for which the Union was certified by the Board
is defined in the Decision and Direction of Election and in
the Certification of Representative as "all editorial
department employees" with certain exclusions not here
relevant . The classification of education writer or reporter,
which Kramer held, concededly falls within the unit for
which the Union was certified. Respondent contends, and
Spaniolo testified , that that position was not abolished with
Kramer's layoff but that "we just don't have a person that
specifically is doing that ." He admitted that the position
would not be reestablished "if our (financial) situation did
not improve" and that "we would continue to handle it the
way we are right now." He testified that he could not say
"definitely" that the position would or would not be
recreated in the foreseeable future . On the day of Kramer's
layoff, Spaniolo told Hendricks that "if the job ever opened
up again , he (Kramer) would have to be offered that job."
That same day, in response to Kramer's query as to the
length of the layoff, Hendricks stated that he did not think
Kramer would be called back.
I am convinced and find that , with the layoff of Kramer,
Respondent eliminated the position or classification of
education writer for the indefinite future , if not permanent-
ly, and that Respondent is engaging in semantics in
contending to the contrary at the instant trial and in its
brief. However, I do not agree that by such conduct
Respondent substantially altered the composition of the
certified bargaining unit in violation of Section 8(a)(5) of
the Act, as the General Counsel contends and the
complaint alleges . For, as previously noted , the certified
unit does not recite any specific categories or classifications
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as it does in the case of the exclusions; it merely covers all
the employees in the editorial department. The elimination
of the position of education writer has not changed this
description of the unit; it changed the number of employees
comprising the unit but not the composition of the unit
which still consists of "all editorial department employees."
I do however find merit in the additional contention and
allegation in the complaint that in acting unilaterally
without prior notice to or consultation with the Union with
which it was carrying on bona fide contract negotiations, as
Respondent concedes it did, Respondent refused to bargain
with the Union within the meaning of Section 8(a)(5) of the
Act. Thus, Respondent rearranged the education work
assignments of the editorial department unit by taking them
away from Kramer and giving them to other staff writers to
handle in addition to their other assignments. This
unilateral action had a substantial impact on the terms and
conditions of employment in the editorial department unit
because it resulted in the loss of Kramer's job and in
increasing the workload of the staff writers who absorbed
his education assignments. Respondent made no showing
that its economic situation was so precarious or that
immediate action was so urgent that it could not take the
time to notify and consult with the Union about the matter.
Thus, these were matters concerning which Respondent
was statutorily obligated to bargain with the Union in
advance, and not as a fait accompli. And this is so even if
Respondent was acting in good faith and was motivated
solely by economic reasons where, as here, the circum-
stances do not excuse or justify such unilateral action.4 For
had the Union's representative been informed of Respon-
dent's plans in advance, they would have had an
opportunity to bargain with Respondent about these
proposed changes before they were made. While there is no
way of foretelling the ultimate result, there is always the
possibility that the Union might have been able to dissuade
Respondent from taking such immediate and drastic action
or might have proposed some alternative or compromise
solution which would have saved Kramer's job. One of the
very purposes of collective bargaining is to provide a
procedure where there would be an opportunity for such
possibilities to bloom into actualities. Respondent's unilat-
eral action foreclosed the Union from having such an
opportunity.5 By such conduct, I find that Respondent
refused to bargain with the Union in violation of Section
8(a)(5) and (1) of the Act .6
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The acts of the Respondent set forth in section III, above,
occurring in connection with its operations as described in
section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. At all times since September 11, 1969, the Union has
been the exclusive collective-bargaining representative of
all the employees in a certified appropriate unit comprised
of all editorial department employees of Respondent with
certain specified exclusions.
2. By unilaterally, without prior notice to or consulta-
tion with the Union with which it was engaging in contract
negotiations , rearranging work assignments in the above-
stated appropriate unit, resulting in the layoff of unit
employee Robert H. Kramer on November 28, 1969, and in
increasing the workload of some unit staff writers,
Respondent engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
4. By eliminating the position of education writer,
Respondent did not substantially alter the certified
bargaining unit set forth above and therefore did not
engage in any unfair labor practices within the meaning of
Section 8(axl) and (5) of the Act.
5. By laying off Robert H. Kramer on November 28,
1969, Respondent did not engage in any unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
V. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act by its unilateral action which resulted in
the layoff of Robert H. Kramer on November 28, 1969, I
deem it necessary, in order to effectuate the policies of the
Act, to order that Respondent restore the status quo which
existed at the time of its unlawful unilateral action and
make amends for any pecuniary or other losses occurring
until said status quo is restored.? I will accordingly
recommend that Respondent offer Robert H. Kramer
immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of earnings he may have suffered as a result
thereof, by payment of a sum of money equal to that which
he normally would have earned as wages from the date of
4 N L R B v Katz, 369 U S 736, 743, 747, 748 denied 389 U S. 838
5 As the Court of Appeals for the Fourth Circuit stated, Respondent's 6 The cases cited in Respondent 's brief turned on their own facts and
"instant unilateral action in violation of its duty to bargain has made it therefore are inapposite
impossible to determine what would have occurred had it moved more 7 Fibreboard Paper Products Corp v. N LR.B, 379 U S. 203, Overnue
slowly " Overnite Transportation Co v N LR B, 372 F 2d 765, 768, cert Transportation, supra
STAR PUBLISHING CO. 217
layoff to the date of Respondent 's offer of reinstatement , the Board in F. W. Woolworth Company, 90 NLRB 289, and
less net earnings during such period , with backpay and Isis Plumbing & Heating Co., 138 NLRB 716.
interest thereon to be computed in the manner described by [Recommended Order omitted from publication.]