Star Publishing Co.

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.]