International Typographical Union, AFL-CIO, Etc.

INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, ETC 759 1 International Hod Carriers', Building and Common Laborers Union of America, Local No 1149, and International Union of Op- erating Engineers, Local 132-A, B, & C, and their officers, agents, and representatives, are not, and have not, been entitled by means proscribed by Section 8 (b) (4) (D) of the Act to force or require James R Lang and Lloyd L Lang, d/b/a Lang Brothers, to assign earth- moving work at its project in New Martinsville, West Virginia, to their members rather than to members of United Mine Workers of America, United Construction Workers, District 50 2 Within 10 days from the date of this Decision and Determination of Dispute, the Respondents shall notify the Regional Director for the Sixth Region, in writing, whether or not they will refrain from forcing or requiring James R Lang and Lloyd L Lang, d/b/a Lang Brothers, by means proscribed by Section 8(b) (4) (D) of the Act, to assign the disputed work to their members rather than to members of District 50 International Typographical Union, AFL-CIO and Members of Its Executive Council; International Typographical Union, AFL-CIO, Local 165, and its Scale Committee and Worcester Telegram Publishing Company, Inc. Case No 1-CD-49 De- cember 16, 1959 DECISION AND ORDER On June 29, 1959, Trial Examiner Lee J Best issued his Interme- diate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of Section 8(b) (4) (D) of the Act, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto Thereafter, Respondent filed exceptions and a supporting brief The Charging Party filed a brief in support of the Intermediate Report Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Jenkins] 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 Intermediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions , and recom- mendations of the Trial Examiner with the following modifications. 1 Section 10 (k) of the Act requires that if the Respondents have complied with the Board's determination, the 8(b) (4) (D) charge 125 NLRB No 93 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD must be dismissed. In the Board's Decision and Determination. of Dispute,' the Board decided that the Respondents were not lawfully entitled to force or require the Employer to assign the work in dispute (paste-makeup) to members of the Respondents rather than to em- ployees of the Employer's choice (nonmember artists) by means pro- scribed by Section 8(b) (4) (D). As one defense to this proceeding, the Respondents contend that they need not comply on the ground that the scope of the Board's determination did not encompass paste- makeup of composing-room reproduction proofs and that the Em- ployer had agreed to the assignment of that work. This contention is without merit. Implicit in the Board's determination is the finding that the Board had reasonable cause to believe that the demand for all paste-makeup work, including that based upon composing-room reproduction proofs, was unlawful. The Board did not find that the Employer had arrived at a conclusive and definitive agreement with the Respondents respecting this work.2 Had the Board found that there was such an agreement, the determination would have been qualified accordingly. Moreover, there is no showing that the parties had made any such agreement since the issuance of that determination. Alternatively, Respondents urge that they have complied with the determination. It is clear, however, from the Respondents' letters addressed to the Regional Director for the First Region as set forth in the Intermediate Report, that the Respondents were, and are, un- willing to abide by, and accept, the determination unconditionally. Thus in its October 28, 1958, letter to the Regional Director, Re- spondents conclude, "This will further notify you that we shall refrain from forcing or requiring the [Employer] to assign paste- makeup work except that based upon composing room reproduction proofs . . . ." [Emphasis supplied.] In our opinion, this consti- tutes evidence of noncompliance warranting issuance of complaint .3 Respondents stipulated at the 8(b) (4) (D) proceeding that the strike which began November 29, 1957, is still continuing. By engaging in the same conduct which constituted the basis of the 10 (k) determina- tion, without any evidence that the object of the strike has changed, the Respondents have afforded the most patent proof of noncompli- x 121 NLRB 793. a It is well settled that an employer is free to make work assignments without being subject to strike pressure of a labor organization seeking work for its members , unless the employer thereby is failing to conform to an order or certification of the Board, or unless the employer is bound by an unambiguous agreement or understanding to assign the disputed work to the claiming union. Local 16, International Longshoremen's and Warehousemen's Union (Denali-McCray Construction company), 118 NLRB 109, 113. 3 Respondents assert in their October 28 letter, and contend in their brief to the Board, that the Board found in the prior proceeding under Section 10(k) that the Em- ployer agreed to assign to the Respondents' members the paste-makeup work based on composing-room reproduction proofs. While the Board did allude to such an "agreement," it is clear from the Board's ultimate findings that it did not regard such agreement to have been sufficiently proved, and we adhere to that view. INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, ETC. 761 ante.' Accordingly, we find that the General Counsel has sustained his burden of proving noncompliance. 2. Aside from two letters offered into evidence by counsel for the General Counsel relating to compliance, no evidence was offered by any of the parties at the 8('b) (4) (D) hearing herein. After having been requested to take official notice of the prior 10(k) record, the Trial Examiner carefully counseled the Respondents regarding their right to put in any new or additional evidence. Having failed to avail themselves of this opportunity, the Trial Examiner in his Intermedi- ate Report concluded that he was bound by the Board's findings and conclusions in the Decision and Determination of Dispute. In view of the different standards of proof,-' we do not adopt the Trial Ex- aminer's conclusion that the Board's findings and conclusions in the Section 10(k) proceeding are binding in the subsequent 8(b) (4) (D) proceeding. As our findings and conclusions herein are based upon our de novo review of the entire record, we hold that any error that may have stemmed from the Trial Examiner's failure independently to evaluate the evidence in the instant proceeding is harmless. As we have indicated, the. issue here is whether the Respondents have en- gaged in unfair labor practices in violation of Section 8(b) (4) (D). All the factors essential for a finding of a violation of this section of the Act are present: it is clear from the record that the Respondents (including the International for reasons discussed infra) were re- sponsible for the strike at the Employer's plant; by such conduct these Respondents induced and encouraged the employees of the Em- ployer to engage in a strike; their object was to force the Employer to assign paste-makeup work to members of Local 165 rather than to nonmember artists; and the Employer was not failing to conform to any order or certification of the Board determining the bargaining representative for the employees performing the work in dispute. Accordingly, we conclude, based on a preponderance of the evidence, that the Respondents violated Section 8(b) (4) (D) of the Act. 3. Respondents urge that the Respondent International was not responsible for any alleged violation of the Act. The record shows that during the 3-year period preceding the strike, International rep- resentatives attended contract-negotiation sessions, and that the Local was granted permission by the International to take a strike vote. In these circumstances, especially as the International authorized the Local to order a strike vote, we find, in agreement with the Trial Ex- 4Loeal 595, International Association of Bridge, Structural and Ornamental Iron Workers, A.F.L., at al. (Bechtel Corporation), 112 NLRB 812, 815. 6In a Section 10(k) proceeding, the Board need only find that there is reasonable cause to believe that an 8(b )(4) (D) violation has occurred ; In an 8 (b) (4) (D) proceeding, findings are based on a preponderance of the evidence. `762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aminer, that this Respondent was also responsible for the foregoing unfair labor practice." ORDER Upon the basis of the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondents, Inter- national Typographical Union, AFL-CIO, and its Executive Coun- cil; International Typographical Union, AFL-CIO, Local 165, and its Scale Committee; and their respective officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from engaging in or inducing or encouraging the employees of Worcester Telegram Publishing Company, Inc., to engage in a strike or concerted refusal in the course of their em- ployment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to per- form any services, where an object thereof is to force or require Wor- cester Telegram Publishing Company, Inc., to assign paste-makeup work to members of the Respondents rather than to artists employed in its art and advertising department, or to other employees of its own choice, who are not members of the Respondents. 2. Take the following affirmative action designed to effectuate the policies of the Act : (a) Post a copy of the notice attached hereto marked "Appendix" T in conspicuous places at each of their respective meeting halls and business offices in the area of Worcester, Massachusetts, where notices and communications to members of the Respondents are customarily posted and, the employer willing, in conspicuous places within the composing room and on bulletin boards throughout the plant of Worcester Telegram Publishing Company, Inc., where notices to all employees are customarily posted. Copies of said notice, to be fur- nished by the Regional Director for the First Region, shall, after being signed by a duly authorized officer of International Typographical Union, AFL-CIO, and an officer of International Typographical Union, AFL-CIO, Local 165, be immediately posted and maintained for a period of 60 consecutive days thereafter. Reasonable steps shall be taken by each of the Respondents to insure that said notice is not altered, defaced, or covered by any other material. (b) Notify in writing the Regional Director for the First Region, Boston, Massachusetts, within 10 days of the date of this Order, what steps each of the Respondents has taken to comply therewith. Local No . 156, United Packinghouse Workers of America, AFL-CIO, et al. (Du Quoin Packing Company), 117 NLRB 670, at p. 672. 7 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, ETC . 763 APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, AND INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, LOCAL 165, AND TO ALL EMPLOYEES OF WORCESTER TELEGRAM PUB- LISHING COMPANY, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT engage in or induce or encourage the employees of Worcester Telegram Publishing Company, Inc., to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to per- form any services, where an object thereof is to force or require Worcester Telegram Publishing Company, Inc., to assign paste- makeup work to members of International Typographical Union, AFL-CIO, or International Typographical Union, AFL-CIO, Local 165, rather than to artists working in its art and advertis- ing department or other employees of its choice, who are not members of said labor organizations. INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Officer ) (Title) INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, LOCAL 165, Labor Organization. Dated---------------- By------------------------------------- (Officer) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding arises under Sections 8(b) (4) (D) and 10(k) of the Labor Man- agement Relations Act, 1947, 61 Stat. 136 (herein called the Act), and was heard before the duly designated Trial Examiner in Worcester, Massachusetts, on April 7 and May 21, 1959, pursuant to process and notice duly served upon all parties. The complaint issued on February 17, 1959, by the General Counsel of the National Labor Relations Board (hereinafter separately designated as General Counsel and the Board), based upon a charge duly filed on December 2, 1957, by Worcester Telegram Publishing Company, Inc. (herein called the Company), alleges in sub- stance that International Typographical Union, AFL-CIO, the members of its Executive Council, International Typographical Union, AFL-CIO, Local 165, and its Scale Committee (herein collectively called Respondent Union, and individually referred to as the ITU and Local 165. respectively) have in violation of Section 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(b) (4) (D) of the Act continually since on or about November 29, 1957, engaged in a strike and are inducing and encouraging the employees of the Company to engage in a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, an object thereof being to force or require the Company to assign paste-makeup work to members of the ITU and Local 165 rather than to other employees of the Company classified or designated as artists, who are not members of the Respondent Union; and have failed and refused to comply with the Board's Decision and Determination of Dispute issued herein pursuant to Section 10(k) of the Act on September 9, 1958. The answer of Respondents admits all allegations contained in paragraphs 1, 2, 3, 4, 5, 6, 7, and 9 of the complaint pertaining to commerce, but denies paragraphs 8, 10, 11, and 12 alleging unfair labor practices. It is admitted that Respondents are labor organiza- tions within the meaning of the Act, that the Executive Council of ITU has been and is an agent of International Typographical Union, AFL-CIO, and that the Scale Committee has been and is an agent of Local 165. All parties were represented by counsel at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant testimony, to argue orally upon the record, and to file written briefs with the Trial Examiner. No witnesses were introduced at the hearing and in lieu thereof it was stipulated that the Trial Examiner consider as part of the record herein all testimony and exhibits offered before the hearing officer in the preceding 10(k) proceedings, the Board's Decision and Determination of Dispute issued on September 9, 1958, together with additional exhibits offered at the hearing. Counsel for all parties argued orally upon the record, and also filed written briefs with the Trial Examiner, all of which have been duly considered. Upon the entire record in the case including the transcript of testimony and exhibits introduced before the hearing officer in proceedings herein pursuant to Section 10(k) of the Act, I make the following: FINDINGS OF FACT 1. THE COMPANY'S BUSINESS Worcester Telegram Publishing Company, Inc., is a corporation duly organized and existing by virtue of the laws of Massachusetts; maintaining its principal office and place of business at Worcester, Massachusetts, where, at all times material herein, it has been engaged in the business of publishing a daily newspaper. During the past year in the course and conduct of its publishing operations, the Company held membership in or subscribed to various interstate news services, including United Press Association and Associated Press, advertised various nationally sold products such as automobiles and appliances, and from such publishing operations received gross revenues in excess of $500,000. I find, therefore, that said Company has been and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATIONS INVOLVED International Typographical Union, AFL-CIO (herein called ITU), including its Executive Council, and International Typographical Union, AFL-CIO, Local 165 (herein called Local 165), including its Scale Committee, have at all times material herein been and are labor organizations within the meaning of Section 2(5) of the Act. IH. THE UNFAIR LABOR PRACTICES A. Chronology of events The last collective-bargaining agreement in writing between Worcester Telegram Publishing Company and Worcester Typographical Union No. 165 (herein called Local 165) expired December 31, 1954. In the absence of a written agreement, the members of Local 165 continued to work under terms and conditions unilaterally prescribed by the Company until the latter part of November 1957, when apparently an impasse in negotiations was reached. At a meeting of Local 165 on November 25, 1957, Local President Joseph R. Mahoney reported the status of negotiations, and the members present voted by a large majority to strike. With approval of the international parent organization (ITU) its Local 165 then called a strike effective November 29, 1957, which has continued without interruption since that date. All parties hereto stipulate that picketing of company premises currently continues with signs designating "Local 165 on strike against Worcester Telegram and Gazette, ap- proved strike by International Typographical Union." INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, ETC . 765 On December 2, 1957, Worcester Telegram Publishing Company, Inc., filed a charge with the Regional Director alleging that "On or about November 29, 1957, said labor organizations, by their officers, agents and employees, have induced or encouraged the employees of the undersigned Employer to engage in a strike or concerted refusal to perform services in order to force the Employer to assign to the labor organizations paste-up work, teletypesetting and any new process which might be installed rather than to employees of the Employer not represented by the labor organizations." Thereafter, pursuant to Section 10(k) of the Act and the Board's Rules and Regulations, a hearing was conducted by I. L. Broadwin (hearing officer) on Febru- ary 24 and 25, March 25, April 1, and May 16, 1958; and on September 9, 1958, the Board issued its Decision and Determination of Dispute in which it made findings and conclusion as follows: A. The Facts The Respondent Unions have represented Worcester Telegram employees in collective bargaining for many years. The Unions' last written contract with Worcester Telegram covered composing room employees and expired December 31, 1954. Thereafter, about June or July 1956, the contracting parties instituted a series of bargaining meetings for the purpose of reaching a new written bargaining agreement. Several months after the start of those meetings Re- spondent Local 165 submitted a written contract proposal containing a clause setting forth the Local's proposed work jurisdiction. The first portion of the proposed clause was basically the same as a work jurisdiction clause which was included in the expired December 1954 agreement; the latter portion of the proposal contained work jurisdiction coverage not previously set forth in the Respondents' contracts with the Worcester Telegram. The pertinent new portions of the work jurisdiction proposal were, as follows: Jurisdiction of the Union . includes classifications such as: . . . operators and machinists on all mechanical devices, which cast or compose . . . film; operators of tape perforating machines and recutter units for use in composing or producing type; operators of all photo- typesetting machines (such as Fotosetter, Photon, . . .); employees engaged in proofing, waxing and paste-makeup with reproduction proofs, processing the product of phototypesetting machines, including develop- ment and waxing; paste-makeup of all type, hand-lettered, illustrative, border and decorative material constituting a part of the copy; ruling, photoproofing; correction, alteration, and imposition of the paste-makeup serving as the completed copy for the camera used in the platemaking process. Paste-makeup for the camera as used in this paragraph includes all photostats and prints used in offset or letterpress work and includes all photostats and positive proofs of illustrations (such as Velox) where posi- tive proofs can be supplied without sacrifice of quality or duplication of efforts. The Employer shall make no other contract covering work as described above, especially no contract using the word "stripping" to cover any of the work above mentioned. With respect to the new portion of the proposed jurisdiction clause, it ap- pears that the Employer's artists, who work in its art and advertising depart- ments and are not represented by the Respondents, have for about 15 years, been performing operations which the Employer's officials refer to as paste- makeup (or paste-up), stripping, and ruling. Paste-makeup, as performed in the Employer's operation, is "an assembly of art work, illustrations, border work, oiling, type matter, reproduction proofs of type matter, to assemble this all on a page or partial page to go to the camera to be photographed by photo- engravers"; stripping is the removal of incorrect type and insertion, by pasting, of correct type on a paste-makeup page; and ruling is the underlining or line bordering, vertically or horizontally, on a paste-makeup page. None of the remaining types of operations set forth in the new portions of the proposed work jurisdiction clause was being performed by employees of the Employer at the time the proposal was made. About May 1957, the president of Respondent Local 165 and Employer of- ficials began to discuss having composing room employees perform some of the paste-makeup operations which the artists were then doing. The Respondents claimed the paste-makeup work for the composing room employees on the theory that it was an operation which was a substitute for composing room processes. Pursuant to these discussions, it appears that the Employer orally and informally "agreed" to give to the Respondents' members the paste-makeup 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work involving reproduction proofs of type which had previously been com- posed in the composing room. Such work was to be started by the Respond- ents' members after they became qualified to do it, and after necessary building alterations involving the composing room were completed. The Employer did not agree to give to the Respondents' compositors paste-makeup work involv- ing any lettering or illustration other than the compositors' own reproduction proofs. About July 1957, the Respondent Local sent one of its members, then work- ing in the Employer's composing room, to a school operated by the Respond- ent International for training in paste-makeup work. When this employee re- turned to Worcester, the Respondents organized a school; and the employee trained about 80 other members of the Respondent Local in paste-makeup work. Meanwhile, the parties continued their negotiations for a new written con- tract. Meetings were held on November 26 and 27, 1957. At -those meetings the Respondents' officials, among other things, demanded Employer acceptance of the Respondents' work jurisdiction proposal pertaining to paste-makeup be- cause the Respondents "were fighting for job security and this was a parallel or substitute process for their conventional way of doing this type of work and, therefore, they are entitled to have it made available to their membership." The Employer rejected the demand because "the people presently employed in that type of work would have to have that work taken away from them in order to satisfy this Union demand or that it would be necessary for -them to join the Union in order to qualify for the work." At the November 27, 1957, meeting an Employer representative stated that, "the stumbling block to a final contract . . . were three items principally: (1) the Union foremen clause; (2) the insistence upon acceptance of the general laws of the I.T.U.; and (3) the so-called jurisdiction clause." And a representa- tive of the Respondents replied, "In our opinion these clauses are legal. . . . We will not withdraw these demands." The Respondents' members went out on strike on November 29, 1957. They were picketing the Employer's plant at the time of the hearing in this proceeding. Since the commencement of the strike some of the Employer's nonstriking employees have started to use tape perforating machines, another of the opera- tions included in the Respondents' proposed work jurisdiction clause. B. The Contentions of the parties The Worcester Telegram contends that, by the above-described conduct, the Respondents violated Section 8(b) (4) (D) of the Act. The Respondents ad- vance a number of contentions in support of the assertion that their strike was not proscribed by the provisions of Section 8(b) (4) (D). Their basic assertion appears to be that their strike was "to achieve a satisfactory agreement"; and that, to the extent the strike was in support of the proposed work jurisdiction clause, it was merely a demand that the Respondents' members continue to "perform certain work by whatever means performed." Sequentially, they argue that such a demand did not require the Employer to reassign work from nonmembers of the Respondents to their members. C. Applicability of the statute In a proceeding under Section 10(k) of the Act the Board is required to find that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated before proceeding with a determination of the dispute out of which the alleged unfair labor practice has arisen. As stated above, the essence of the Respondents' position is that the purpose of their strike was "to achieve a satisfactory agreement." They assert that they were striking to obtain Employer concessions on about 15 economic issues which derived from their written contract proposal. The Respondents also claim that the strike was partially in protest against the Employer's failure properly to apply job priority for employees as well as its refusal to comply with the Respondents' requests for negotiation meetings. On the other hand, the presi- dent of the Respondent Local testified that the work jurisdiction clause was one of the issues on which the "Company and the Union were apart." Indeed, the Respondents admit in their brief that, "at the time of the strike," they were "in disagreement" with the Employer concerning the work jurisdiction clause of the proposed contract. Accordingly, at least a portion of the Respondents' pur- pose in striking was to resolve the "disagreement" over the work jurisdiction clause by forcing or requiring the Employer to accept that clause. It follows, INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, ETC. 767 therefore, that if the Respondents' work jurisdiction proposal required the as- signment of work to its members rather than to "employees in another labor organization or in another trade, craft, or class," the Respondents' strike was for an unlawful object within the meaning of Section 8(b)(4)(D). As noted above, the Respondents contend that the proposed work jurisdic- tion clause was merely a demand that the Respondents' members continue to "perform certain work by whatever means performed." Implicit in this con- tention is the claim that their members were, in fact, performing all the work operations described in the proposal. The record does not support the Respond- ents' claim. The record shows with respect to the paste-makeup operations in- cluded in the Respondents' proposal, that artists in the Employer's art and advertising departments have, for about 15 years, been performing paste- makeup work.' Those artists were not members of, or represented by, the Respondents.2 The record thus establishes that the Respondents struck with an object of forcing or requiring the Employer to assign to the Respondents' members work- ing in the composing room the paste-makeup work which the Employer had assigned to artists who were not members of the Respondents and who had been performing the paste-makeup operations. Apparently anticipating that the record establishes these facts, the Respondents argue, in the alternative, that the amount of work in dispute was de minimis for the purposes of 8(b) (4) (D). Related to this argument is the Respondents' assertion that they did not seek the discharge of any employees. Whether a union's conduct, which is intended to force the reassignment of work within the meaning of Section 8(b) (4) (D), will require the actual discharge of those employees who are deprived of the disputed work is completely irrelevant to the resolution of an 8(b)(4)(D) issue. In other words, a finding that the Employer would or would not have discharged its artists, if it had acceded to the Respondents' unlawful pressure herein, is not determinative of the question whether there is reasonable cause for finding that the Respondents violated 8(b)(4)(D). Moreover, the Board, in its judgment, rejects the Respondents' de minimis argument. On the basis of the foregoing, and the entire record, we find that there is reasonable cause to believe that the Respondents induced or encouraged the Worcester Telegram's employees to engage in a strike with an object of forcing or requiring the Worcester Telegram to assign paste-makeup work to members of the Respondents rather than to other employees of the Worcester Telegram- the artists-who were not members of the Respondents, thereby violating Section 8(b) (4) (D) of that .3 We find, accordingly, that the dispute involved in this proceeding is properly before the Board for determination under Section 10(k) of the Act. i The Respondents assert that the Employer was confused about, and misinterpreted the ;cope of, the term "paste- makeup" used in the Respondents' work jurisdiction proposal. The basis for this assertion apparently, is the Employer's occasional use of the term "paste-up," which the Employer used, for example, in the charge filed herein. However, the record establishes that the only confusion or misinterpretation involved was the appropriate term to be used to describe particular work functions. Both the Respondents' representatives and the Employer's established by their record testimony that the specific work, which the two slightly varying terms were intended to describe, was one and the same. Accordingly, we reject the Respondents' assertion. 2 The Respondents contend that the paste-makeup work which the artists had been performing for '15 years was experimental. They also contend that the pro- posed work jurisdiction clause referred to permanent paste-makeup. Upon these contentions the Respondents request the Board to find that they made no present demand for the reassignment of work to their members. The record rebuts these contentions. The Employer's officials testified that the paste-makeup work was done by the artists on a permanent basis. Moreover, the performance of such work on an experimental basis for the extended period of 15 years is inherently unlikely. Accordingly, we find that the Respondents' demand for the Employer's paste-makeup work contained in the work jurisdiction proposal and the strike in support thereof constituted a present demand for work. IIt is therefore unnecessary to decide herein whether there is reasonable cause to believe that another object of the Respondents' strike-that is, the assignment to the Respondents' members of tape perforating machine operations, or of any other work, not being performed by any of the Employer's employees at the time the strike started on November 29, 1957-also violated Section 8(b) (4) (D) of the Act. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Merits of the dispute When the Respondents struck to require that their members be assigned the Employer's paste-makeup work, the Employer's artists, who were not members of the Respondents, were performing the work. The dispute, therefore, was one over the assignment of work by an employer to certain of its employees who were not members of the Respondents rather than to members of the Respondents. An employer is free to make such a work assignment free of strike pressure by a labor organization unless the employer is failing to conform to an order or certification of the Board determining the bargaining representa- tive for employees performing the work involved? There is no evidence, in this case, that the assignment of work by the Worcester Telegram was in con- travention of any Board order or certification. The Respondents contend, however, that, by the oral "agreement" they reached with the Employer in May 1957, the Employer, after lawful collective bargaining, assigned the disputed paste-makeup work to the Respondents' mem- bers. They assert that the portion of their proposed work jurisdiction clause which referred to paste-makeup operations was merely a written incorpora- tion of the oral "agreement." They argue, in substance, that the paste-makeup work was no longer in dispute when the strike was called at the end of Novem- ber 1957. This argument seems to conflict with the Respondents' above- mentioned admission that there was still "disagreement" over the proposed work jurisdiction clause "at the time of the strike." But in any event, the argument is based upon selected record facts. The entirety of the record shows that the oral "agreement" was far from definitive or conclusive. The Local's president, who negotiated the oral "ar- rangement" for the Respondents, testified that "the whole thing was up in the air as to what exactly would end up as the paste-makeup process in [the Respondents'] hands." He also testified, with respect to the effectiveness of the oral "agreement," that until a written contract was actually signed with the Employer the Respondents "were bound by nothing." However, irrespective of the ambiguity and inconclusiveness of the oral "agreement," it is clear that the Employer conceded at the very most to assign to the Respondents' members only paste-makeup work of the reproduction proofs originating in the compos- ing room. In contrast, as shown by ,the testimony of the Local's president and the language of the Respondents' proposal itself, the Respondents actually wanted the Employer to assign to their members all paste-makeup , not just that based upon composing room reproduction proofs.5 In such circumstances, we find that the Employer did not assign the disputed paste-makeup work to the Respondents and that the Respondents do not have a contractual right to that work. The Board finds, accordingly, that the Respondents were not and are not lawfully entitled by means proscribed by the statute to force or require the Worcester Telegram to assign paste-makeup work to the Respondents' mem- bers rather than to the employees assigned by the Worcester Telegram to perform such work. E. Determination of dispute 6 Upon the basis of the foregoing findings and the entire record in this case, the Board makes the following determination of dispute pursuant to Section 10(k) of the Act. 1. International Typographical Union, AFL-CIO, Members of its Executive Council, and International Typographical Union, AFL-CIO, Local 165, its 4 International Longshoremen's and Warehousemen's Union, Local No. 26, C.I.O. Juneau Spruce Corporation ), 82 NLRB 650. e Also revealing in reference to the merit of the Respondents ' contention that the proposed work jurisdiction clause was merely a written incorporation of the May 1957 oral "agreement" is the fact that the Respondents submitted the proposed contract clause to the Employer almost a year before the parties had reached the oral "agreement" in question. 9 The Respondents contend that "the case at bar should be excluded from the 10(k) determinations, for the NLRB cannot meet the mandate of the court in N.L.R.B. v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry etc. (Frank W. Hake), 242 F. 2d 722 ( C.A. 3)." [Also commonly known as the Hake case.] The Respondents have not advanced reasons to support this contention . Moreover, this Board respectfully disagrees with the Court of Appeals' opinion in the Hake case. See Local 16, International Longshore- men's and Warehousemens Union (Deneli.McCray Construction Company), 118 NLRB 109, footnote 4. INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, ETC. 769 Scale Committee, and their respective agents are not and have not been law- fully entitled to force or require Worcester Telegram Publishing Company, Inc.,. to assign the work in dispute to members of said labor organizations, rather than to that Company's employees of its choice. 2. Within ten (10) days from the date of this Decision and Determination of Dispute, the Respondents shall notify the Regional Director for the First Region of the National Labor Relations Board, in writing, whether or not it accepts this determination of the dispute and whether or not it will refrain from forcing or requiring Worcester Telegram Publishing Company, Inc., to assign- the work in dispute to members of the Respondents rather than to employees of the Company's choice by means proscribed by Section 8(b) (4) (D) of the Act. B. The issues In its Decision and Determination of Dispute dated September 9, 1958, the Board has made complete and conclusive findings of fact , reviewed the contentions of the parties, determined the applicability of the statute, and the merits of the dispute. It found that at least a portion of the Respondents' purpose in striking was to resolve the "disagreement" over the work jurisdiction clause in the proposed contract by forcing or requiring the Employer to accept that clause; and that Re- spondents struck with an object of forcing the Employer to assign to the Re- spondents' members working in the composing room the paste-makeup work which the Employer had assigned to artists who were not members of the Respondents and who had been performing the paste-makeup operations . The Board found that the alleged oral agreement by virtue of which Respondents claim that the Employer in May 1957 assigned to its members the paste-makeup work of repro- duction proofs originating in the composing room was far from definitive or conclusive, and that the Employer did not assign the disputed paste-makeup work to the Respondents, and that Respondents do not have a contractual right to that work. Thereupon the Board issued its order requiring Respondents to notify the Regional Director in writing whether or not they accept this determination of dispute and will refrain from forcing or requiring the Employer to assign the work in dispute to members of the Respondent Union rather than to employees of the Company's choice by means proscribed by Section 8(b) (4) (D) of the Act. The aforesaid proceedings under Section 10(k) of the Act culminating in the Board's Decision and Determination of Dispute therein must be viewed as a part of the whole procedural machinery prescribed in Section 10 of the Act for the prevention of all unfair labor practices .' Upon the filing of the 8 (b) (4) (D) charge herein, Section 10(k) interposed an intermediate formal step between investigation of the charge and the issuance of a complaint based thereon. It provided for a hearing and a declaratory ruling by the Board on the question of legal entitlement to force or require the work assignment involved in the underlying dispute, which is designed to facilitate settlement of the dispute and to obviate the need for further proceedings . The principal issue for consideration here is whether the Respondents have complied with the Board 's Decision and Determination of Dispute. If the 10(k) procedure has produced a settlement or acceptance and compliance with the Board's determination of the underlying dispute, the charge should be dismissed. The threshold question for the Trial Examiner to decide, therefore, is whether the Respondents have complied with the Board's Decision and Determination of Dispute in the 10(k) proceeding. C. The question of compliance The Board's Decision and Determination of Dispute , which was duly served upon Respondents on or about September 11, 1958 , clearly limits the work in dispute to paste-makeup, as performed in the Employer's operation, and defines such work as "an assembly of art work, illustrations, border work, ruling, type matter, repro- duction proofs of type matter , to assembly this all on a page or partial page to go to the camera to be photographed by photo-engravers ." It is clear from the record that the terms "pasteup," "stripping," and "ruling" denote various minor operations performed in the paste-makeup process prior to sending the completed page assembly to the photoengravers. The Board found that the Employer did not assign the aforesaid paste-makeup work to the Respondents , and that they are not and have not been lawfully entitled to force or require Worcester Telegram Publishing Company, Inc., to assign the work in dispute to members of said labor organization rather than to that Company's employees of its choice . The accompanying order of the I See Local 595, International Association{ of Bridge, Structural and Ornamental Iron Workers, A.F.L., et at (Bechtel Corporation), 112 NLRB 812-822. 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board required the Respondents to notify the Regional Director in writing whether or not it accepts this determination of the dispute and whether or not it will refrain from forcing or requiring Worcester Telegram Publishing Company, Inc., to assign the work in dispute to members of the Respondents rather than to employees of the Company's choice by means proscribed by Section 8(b) (4) (D) of the Act. Following a series of conferences and correspondence with the Regional Director or his representative, counsel for Respondents on October 28, 1958, stated their position with respect to compliance in a letter to the Regional Director , as follows: OCTOBER 28, 1958. Mr. BERNARD L. ALPERT, Regional Director, National Labor Relations Board, 24 School Street, Boston 8, Massachusetts Re: Worcester Telegraph Publishing Co. Case No. 1-CD-49 DEAR MR. ALPERT: We acknowledge receipt of the Decision and Determination of Dispute of the Board of September 9, 1958, in the above-entitled matter. The Decision deals with three matters. The first are the work processes covered by the expired 1954 agreement, referred to at page 2 of the Opinion. The Board does not find that the demand for this much of the proposed jurisdic- tional clause was unlawful. The Opinion then notes at Page 3 that "None of the remaining types of operations set forth in the new portion of the proposed work jurisdiction clause was being performed by employees of the Employer at the time the proposal was made." As we read the Opinion, the Board does not find the demand for this much of the proposed clause to be unlawful. The Board then finds at Page 4 that the Employers had agreed to give to the Respondents "the paste make-up work involving reproduction proofs of type which had been previously composed in the composing room," and that the Respondent Local Union, in reliance on that promise, went to considerable expense to train persons on this work. As we read the opinion, the Board does not find the demand that the employer carry out this agreement to be unlawful. The record clearly shows that it was this work which had been introduced on an experimental basis, and that the disagreement between the parties on this issue related to the refusal of the Employer to embody that understanding in a written agreement. This will further notify you that we shall refrain from forcing or requiring the Worcester Telegram Publishing Company, Inc. to assign paste make-up work except that based upon composing room reproduction proofs to members of respondents rather than to employees of the Company's choice by means proscribed by Section 8(b) (4) (D) of the Act. Very truly yours, ROBERT M. SEGAL, Counsel for International Typographical Union and Local 165. cc: ITU Gerhard Van Arkel, Esq. Subsequent to further negotiations and conferences between the parties, counsel for Respondents on January 27, 1959, stated their final position with respect to compliance in a letter to counsel for the General Counsel of the National Labor Relations Board, as follows: JANUARY 27, 1959. HAROLD KOWAL, Esq., National Labor Relations Board, 24 School Street, Boston, Mass. Re: Worcester Telegram Publishing Co. Case No. 1-CD-49 DEAR MR. KOWAL: In view of the fact that the General Counsel has rejected as unsatisfactory my letter to Mr. Alpert of October 28, 1958 in the above matter, that letter is hereby withdrawn. This will inform you that the only jurisdictional demands which Worcester Typographical Union Local No. 165 has ever made, or is presently making, are those which the Board did not find to be unlawful; i.e., a demand for work INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, ETC . 771 previously covered by agreements between the parties, a demand for certain work not yet introduced, and a demand for "paste makeup work involving reproduction proofs of type which had been previously composed in the com- posing room." We have never made nor are we presently making any demands going beyond these three in this case. Very truly yours, ROBERT M. SEGAL, RMS: EK Counsel for Local 165. cc: Gerhard Van Arkel, Esq. From the foregoing conferences, discussions, letters, and the entire record in the case, I find that Respondents have not accepted or complied with the Board's Deci- sion and Determination of Dispute in the 10(k) proceeding herein. D. The question whether Respondents have violated Section 8(b)(4)(D) The 10(k) procedure having failed to produce a settlement or acceptance by the Respondents of the Board's determination of the underlying dispute, thereupon, the General Counsel issued a complaint based on the charge and followed the traditional procedure for determination and redress of all unfair labor practices as provided in Section 10(b) of the Act. The only substantive matter then to be decided is whether an unfair labor practice was engaged in by Respondents within the meaning of Section 8(b)(4)(D), as of the time of the strike alleged in paragraph 8 of the complaint and, if so, what the appropriate remedy should be. In an unchanged situation and the absence of additional or newly discovered evidence at the hearing on the complaint, I cannot agree with the contention of counsel for the Respondents in his brief that, aside from compliance, the principal issue before the Trial Examiner is whether Local 165 by proposing the jurisdictional clause on or about October 1, 1956, was seeking to compel the assignment of any work in existence at Worcester other than had previously been agreed upon by the parties. Inasmuch,as proceedings under Section 10(k) must be viewed as a part of the whole procedural machinery prescribed in Section 10 for the prevention of all unfair labor practices, and since, aside from evidence of compliance, the record before the Trial Examiner here is the identical record before the Board in the 10(k) proceeding supplemented only by argument of counsel and written briefs, I am of the opinion that all findings and conclusions made by the Board in its Decision and Determination of Dispute are binding upon the Trial Examiner in a subsequent hearing upon a complaint based solely upon the same issues. No additional issues of fact were raised at the hearing. The Trial Examiner here, therefore, adopts the findings and conclusions made by the Board in its Decision and Determination of Dispute issued on September 9, 1958. Notwithstanding the contentions of Respondents to the contrary, the Board has found inter alia that: At least a portion of Respondents' purpose in striking was to resolve the disagreement over the work jurisdiction clause by forcing or requiring the Employer to accept that clause; Respondents struck with an object of forcing or requiring the Employer to assign to the Respondents' members working in the composing room the paste-makeup work which the Employer had assigned to artists who were not members of the Respondents and who had been performing the paste-makeup operations; the Employer's artists, who were not members of the Respondents, were performing the paste-makeup work when the Respondents struck to require that it be assigned to their members; the dispute was one over the assign- ment of work by an employer to certain of its employees who were not members of the Respondents rather than to members of the Respondents; and there is no evidence in this case that the assignment of work by the Worcester Telegram was in contravention of any Board order or certification. The Board rejected the con- tention of Respondents that the work in dispute had been assigned to its members in the composing room under an oral agreement made in May 1957, approximately 8 months after Respondents had in writing submitted, and never withdrawn, the proposed work jurisdiction clause. Consequently, the Board found that the Em- ployer did not assign the disputed paste-makeup work to the Respondents and that the Respondents do not have a contractual right to that work; and the Respondents were not and are not lawfully entitled by means proscribed by the statute to force or require the Worcester Telegram to assign paste-makeup work to the Respondents' members rather than to the employees assigned by the Worcester Telegram to per- form such work. Concluding Findings Having found that the Respondents have failed to accept and comply with the Board's Decision and Determination of Dispute herein, I am now constrained to 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hold and find that Respondents and their agents named herein have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (4) (D) of the Act by engaging in, and inducing or encouraging the employees of Worcester Telegram Publishing Company, Inc., to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or other- wise handle or work on goods, articles, materials, or commodities or to perform services, where an object thereof is forcing or requiring Worcester Telegram Pub- lishing Company, Inc., an employer, to assign particular work to employees in a particular labor organization rather than to employees in another class in the ab- sence of an order or certification of the Board determining the bargaining repre- sentative for employees performing such work. I find no merit in the contention of counsel for Respondents that the record herein fails to show any violation of Section 8(b) (4) (D) by the International Typographical Union, AFL-CIO, and Members of its Executive Council, since they are the alter ego of Local 165, and its Scale Committee. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth above, occurring in connection with the operations of Worcester Telegram Publishing Company, Inc., 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. V. THE REMEDY Having found that the Respondents, International Typographical Union, AFL- CIO, and Members of its Executive Council, and International Typographical Union, AFL-CIO, Local 165, and its Scale Committee, have each violated Section 8(b)(4)(D) of the Act, as set forth above, I shall recommend that they cease and desist from such conduct and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Typographical Union, AFL-CIO, including its Executive Council, and International Typographical Union, AFL-CIO, Local 165, including its Scale Committee, are each labor organizations within the meaning of Section 2(5) of the Act. 2. By engaging in a work stoppage and picketing and by inducing and encourag- ing the employees of Worcester Telegram Publishing Company, Inc., to engage in a strike or concerted refusal in the course of their employment to perform Cervices with an=object of forcing or requiring Worcester Telegram Publishing Company, Inc., to hssign paste-makeup work to members of Local 165 working in its com- posing room, rather than to artists working in its art and advertising department, who are not members of Local 165, the Respondents International Typographical Union, AFL-CIO, and its Executive Council, and International Typographical Union, AFL-CIO, Local 165, and its Scale Committee, have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(4)(D) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] W. L. Rives Company and Sheet Metal Workers International Association, AFL-CIO. Cases Nos. 12-CA-436 and 12-CA-565. December 16, 1959 DECISION AND ORDER On March 24, 1959, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding, finding 125 NLRB No. '89.