Atlas Graphics, Inc.

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