NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,545, WINCHELL COMPANY and GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, LOCAL 14-M, AFL-CIO-CLC., (Nov. 03, 1994), National Labor Relations Board, (Nov 3, 1994)

On April 5, 1994, the General Counsel filed a motion to strike the Respondent’s exceptions and brief in support of exceptions because they did not comply with the Board’s Rules and Regulations Sec. 102.46(b)(1) and Sec. 102.46(j). These sections require that where a brief in support of exceptions is filed, argument or citation of authority should be set forth only in the brief which is limited to 50 pages. On April 6, 1994, the Executive Secretary requested that the Respondent submit its exceptions in proper format on or before April 11, 1994. On April 7, 1994, the Respondent filed its amended exceptions. On April 18, 1994, the General Counsel filed a motion to strike the Respondent’s amended exceptions and brief in support of exceptions on the same grounds as stated in the General Counsel’s previous motion. On April 20, 1994, the Respondent filed a motion to strike, or alternatively to deny, the General Counsel’s motion to strike the Respondent’s amended exceptions. On that same day, the Executive Secretary notified the parties that the matter had been forwarded to the Board. On April 25, 1994, the General Counsel filed a response to the Respondent’s motion to strike the General Counsel’s motion to strike the Respondent’s amended exceptions.

The General Counsel’s motion to strike the Respondent’s amended exceptions, and the Respondent’s motion to strike the General Counsel’s motion are denied. We have not, however, considered any argumentation or citation of authority in support of the exceptions contained in the Respondent’s enumerated exceptions, and we have considered only the argumentation and citation of authority contained in the Respondent’s brief in support of its enumerated exceptions.

In its exceptions, the Respondent argues, contrary to the judge’s findings, that its 1988-1989 decision to invest in desktop computers changed the way it related to its customers and therefore changed the scope and direction of the Respondent’s business as in Noblit Bros., [1991-92 CCH NLRB ¶16,946] 305 NLRB 329 (1992). We disagree with the Respondent and find Noblit inapplicable.

In that case, telephone sales work began as random order taking and question answering. However, after the installation of computers and a telemarketing program, the work involved concentrated efforts at selling. Each telemarketer was assigned a geographical area where he or she was responsible for servicing customers and building accounts through an aggressive initiation of sales and pursuit of sales. The Board held that this change in telephone sales work was a basic change in the scope and direction of the enterprise.

We find no such change here. The Respondent alleges that the desktop computers eliminated the work of prepress personnel such as artists and typesetters since this work was not done by customers who forwarded it to the Respondent via computer disks. Nevertheless, the Respondent still related to its customers in the same way. The change entailed customers performing the initial steps of the printing process for themselves. Thus the technological advance of the desktop computers changed the Respondent’s operation by degree not kind. The Respondent still performed those steps necessary to provide the finished printed product to the customer. The Respondent merely engaged in slightly fewer steps than theretofore. That is not the change in kind as occurred in Noblit. Moreover, the Respondent admits that the volume of business attributable to desktop sales remained small and reached only 2 percent of the Respondent’s overall sales in 1992. Accordingly, under all these circumstances, we agree with the judge that the Respondent’s decision to invest in desktop computers did not change the direction and scope of the Respondent’s business.

Member Cohen does not agree with his colleagues that the five business decisions antedating the layoffs involved here fall within the second category of decisions described in First National Maintenance Corp. v. NLRB, [91 LC ¶12,805] 452 U.S. 666 (1981). In his view, they more appropriately fall within the ambit of category 3 and thus would not necessarily involve mandatory subjects of bargaining. However, in his view, it is unnecessary to decide whether these decisions were actually mandatory subjects of bargaining, because there is insufficient credited evidence to establish a causal nexus between these decisions and the layoff decisions involved here.

With respect to the layoff decisions themselves, Member Cohen applies the balancing test of “category 3” decisions and finds, based on the credited evidence, that the layoffs were not the result of a change in the scope and direction of the enterprise. Rather, the layoff decisions were motivated by a loss of business and a concomitant desire to save on labor costs. Thus, Member Cohen concludes that the decisions to layoff here were mandatory bargaining subjects.