New York Paper Cutters', Etc., Local Union 119

NEW YORK PAPER CUTTERS', ETC., LOCAL UNION 119 435 (c) Notify the Regional Director for the Sixteenth Region, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply therewith.ls 161n the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT question employees concerning their or other employees' mem- bership in or activities on behalf of Local 826, International Union of Operating Engineers, AFL-CIO, or any other labor organization of our employees, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a) (1) of the Act. WE WILL NOT threaten employees with loss of benefits or discharge by reason of their selecting Local 826, International Union of Operating Engineers, AFL- CIO, or any other labor organization of the employees, as their bargaining representative. WE WILL NOT engage, or attempt to engage, in surveillance of the union activities of our employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities WE WILL, upon request, bargain collectively with Local 826, International Union of Operating Engineers, AFL-CIO, as the representative of the em- ployees in the appropriate unit with respect to rates of pay, wages, hours of work, and other conditions of employment, and, if an understanding is reached, em- body such understanding in a signed agreement. TEXAS COCA-COLA BOTTLING COMPANY, I . Employer. Dated------------------- By------------------------------------------ (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison 5-4211, Extension 2131, if they have any question concerning this notice or compliance with its provisions. New York Paper Cutters' & Bookbinders' Local Union No. 119, International Brotherhood of Bookbinders , AFL-CIO [Print- ers League Section, Printing Industries of Metropolitan New York, Inc., and its Employer-Members] and Automatic Seal- ing Service, Inc. Case No. 2-CD-265. March 20.1961,p DECISION AND DETERMINATION OF DISPUTE This is -a proceeding under Section 10(k) of the Act following a charge filed on April 1, 1963, by Automatic Sealing Service, Inc., herein called Automatic, alleging a violation of Section 8(b)-(4) (D) 146 NLRB No. 49. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by New York Paper Cutters' & Bookbinders' Local Union No. 119, International Brotherhood of Bookbinders, AFL-CIO, herein called Local 119. A hearing was held before Hearing Officer William G. McCreary on June 17, 19, 20, 24, and 25 and July 17 at New York, New York. All parties participated in the hearing 1 and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, Automatic and Local 119 filed briefs which the Board has duly considered. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following findings : 1. Automatic, New York corporation, is an employer engaged in commerce within the meaning of the Act. 2. Printers League is an employer association incorporated in New York which, inter alia, negotiates and administers collective-bargain- ing agreements with Local 119, on behalf of employer-members who are engaged in commerce within the meaning of the Act. 3. Local 119 is 'a labor organization within the meaning of the Act. A. The nature of the controversy; contentions of the parties The dispute concerns the operation of a sealing machine developed by Automatic, owner of the machine, more than 25 years ago. The machine seals pamphlets, brochures, and other self-mailing material- work of a kind which had been done by hand before development of the machine. In the New York City metropolitan area, Automatic sells its sealing services, but not its machine. It maintains a , com- plement of employee-operators who are not organized. Automatic's customers in the New York metropolitan area include binderies whose employees are represented by Local 119. Until the events here in issue, Automatic had done business with said binderies for many years under two arrangements, as follows : On orders in- volving large "runs" of over 50,000 pamphlets, Automatic sent one of its machines to the bindery together with one of its own employees to operate the machine. On such occasions, the bindery provided a "helper" from its own complement whose function it was to gather up the sealed pamphlets as they come off the machine and to'box them. On smaller "runs" of less than 50,000, the binderies sent the brochures tothe Automatic plant where the work was performed by Automatic's employees. 1 Printers League Section , Printing Industries of Metropolitan New York, Inc., herein called Printers League, appeared and participated as party-in -interest in these proceedings. NEW YORIC PAPER CUTTVRS',' ETC., LOCAL TJNION' 119 437 Beginning in March 1963, Local 119 demanded that changes be made in these arrangements, as described below. According to the charges filed, an object, of Local 119's demands was to obtain for journeymen bookbinders it represented the assignment of work tasks being performed by Automatic's employees. Further, according to the charges, Local 119 sought to enforce its demands by conduct pro- hibited by 8 (b) (4) (i) and (ii) (D) of the Act. Local 119 denies that its demands were for objectives prohibited by 8(b) (4) (D) and it disclaims using any proscribed pressures to en- force them. It asks, accordingly, t a^ the notice of hearing be quashed. However, if a jurisdictiomi ,dispute cognizable under Sec- tion 10(k) is found to exist, Local 119,4sks that the Board award the work of operating Automatic's sealing machine to journeymen it represents. B. Basic facts Begiiuiing in March 1963, during a, period of unemployment among journeymen bookbinders represented by Local 119, union members began questioning local officials about the fairness of Automatic's "non- union" employees operating the sealing machine on bindery premises while bindery employees were "losing time" and some were being laid off. Hellman, president of Local 119, received the first such call from John Claps, the "chairman" at Charlton Bindery. Hellman told Claps to "go to management and tell them that this machine would require a journeyman from 119" and that "if he [Claps] had any trouble with management he was to call" Hellman. Subsequently, Hellman and Local 119's vice president, Grossman, protested to the binderies that their sealing-work arrangements were in violation of the bargaining contract. Among other things, they advised the bind- eries that : (1) the Union objected to any farming out of any sealing work "which could be done at the bindery premises as this was a meflidd,of circumventing Local 119's contract"; and (2) when Auto- matic brought its machine to the bindery plants, that machine would have to be "covered" or "manned" by a journeyman operator within Local 119's contract unit. Hellman also advised an official of Auto- matic of the Union's position. Further, the Union published the • following notice in the April issue of a bulletin it circulated monthly to its members : URGENT ATTENTION ALL MEMBERS The following directive is hereby issued to every member of the Union : All automatic sealing equipment (machine sealing of self- mailings) comes under the jurisdiction of Local 119's contract. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All such machine work done in any of our shops must be covered by journeymen of Local Union 119. D In the event any job is scheduled to be sent out from your plant for sealing, notify your Union immediately. Every member of the Union will be held responsible for adher- ing to the foregoing mentioned directive in his respective shop. Following circulation of this directive, certain bindery officials ques- tioned Hellman as to what they were expected to do in the matter. For example, one asked what he was to "insist that the journeyman do on the machine." Hellman tol1"him, "We would expect a journeyman to operate the machine," butld`we would have no objection" if Auto- matic's employee "assist[ed] 'bur man in setting the machine." An- other reported to Hellman his understanding that Automatic "would object to anyone touching its machines," and Hellman told him, "We certainly had no objection-if our journeyman did not actually run the machine by himself." On another occasion, on receiving, reports that a bindery foreman had a journeyman "stand by and box" on the machine, Hellman described this "standby" arrangement as a "misun- derstanding" of the local's directive and, in his words, "notified our people that they were supposed to run this machine, our journeymen." In April, at a meeting between the Printers League and Local 119, Matthew Kelly, secretary of the Printers League, sought to obtain from Hellman a rescission of the above directive and a withdrawal of the local's demands on the binderies. In response, Hellman stated that the sealing work "was the Union's work"; that the Union would not rescind the above-described directive to its members; and that the Union "had ways to see that the work would not be performed by others." In addition, two bindery officials, Weintraub of L & M Bookbinding Co., and Ginsberg of Practical Bookbinding Co., attributed to Local 119 officials certain threats of strike action. According to Weintraub, Grossman told him the Union would "pull the shop" to enforce the demands described above. And according to Ginsberg, Hellman said, at the above-described meeting of the Printers League, that the union men "would not work unless the sealing machines were covered by a journeyman." Faced with the protests of the Union, most bindery employers capitulated by arranging to have all the sealing work performed on the binderies' premises and assigning a journeyman to "cover" and work with Automatic's operator on the sealing machine. Pending disposition of its charges, Automatic, in turn, has cooperated by send- ing its machine to the binderies' premises and by directing its em- ployees to allow a bindery journeyman to help with the operation of this machine whenever a demand to that effect was made. NEW YORK PAPER CUTTERS', ETC., LOCAL UNION 119 439 Our dissenting colleague's position that this case does not involve a jurisdictional dispute cognizable under Sections 10(k) and 8(b) (4) (D), appears to be rooted in his view of the controversy as one that concerns essentially an attempt by the Respondent to prevent the removal or contracting out of sealing work from the binderies in order to provide work for Respondent's members under a claim of contract entitlement. But this view fails to take account- of the fact that during the 30 years preceding Respondent's protest against re- moving automatic sealing work from the binderies, the work was performed by employees other than those covered by Respondent's contracts with the Printers League. Respondent's protests, begin- ning in March 1962, were accompanied by demands and assertions that sealing work was the Union's work, that such work done in the binderies had to be covered by union members, and that union journey- men were "supposed to run the machine." The unmistakably clear purpose of all this, as the dissent apparently concedes, was to obtain for union members additional work which they had not performed before. It was obvious to all that the Respondent could not get for its members any of the sealing work then being performed by others, even that portion entailed in covering a machine, unless there was a reassignment of the work to the union members. In the circumstances of this case, there is abundant reason to believe that such a reassign- ment of work was the real object of the Respondent's pressures. Respondent's interposition of a claim of contract right can scarcely becloud this fact. C. Applicability of the statute Although union officials deny engaging in some of the activity at- tributed to them as above described, we are nevertheless satisfied, upon the record as a whole, that there is reasonable cause to believe the Union engaged in conduct proscribed by Section 8(b) (4) (i) and (ii) of the Act for an object proscribed by subsection (D) thereof, namely, to force the assignment of work to its members which had been performed by employees of Automatic.2 We conclude, accordingly, that the dispute over operation of the Automatic sealing machine is properly before us for determination under Section 10 (k) of the Act. ZAs has been frequently noted, under Section 10(k) procedures the Board is not re- quired to find that a respondent union has in fact committed the charged violation of 8(b) (4) (1) or (Ii) (D) but must be satisfied only that there is reasonable cause to believe that such a violation has occurred . See, e.g., Local 535 of the Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO ( Bishopric Products Company), 140 NLRB 1304, 1308; International Brotherhood of Electrical Workers, AFL-CIO, and its Local 639 (Bendix Radio Division of Bendur Corporation ), 138 NLRB 689. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, D. Merits of the dispute Local 119 asks that the work be awarded to bookbinders, members of the craft it represents. It claims that its contract with the Print- ers League, executed in 1960 for a 6-year term, in effect awards the work to such journeymen; that the skills involved are those that bookbinders have traditionally exercised; and that under the industry practice in other parts of New York State, such work is customarily performed by bookbinders. Local 119 rests its contractual claim on those provisions of its col- lective-bargaining agreement with the Printers League that broadly describe the unit coverage and list the various job classifications in- cluded within it. But no mention is made in any such provision of "sealing" work, automatic or otherwise. Local 119 concedes as much, but nevertheless contends, contrary to the position of the employer parties to the contract, that it is possible to interpret its contract as covering the disputed work. The undisputed fact remains, however, that for approximately 15 years prior to the events giving rise to these proceedings Local 119 never protested the performance of the disputed sealing work by Automatic's nonunion employees. In the circum- stances, we cannot find that Local 119's claim to the work in dispute has clear and unambiguous support in any contract.' Other factors on which Local 119 relies also fail to establish the superiority of its claim on behalf of the bookbinders to the disputed work over that of employees of Automatic who are now assigned the work. The work is not highly complex, and can be performed by any relatively unskilled employee after a short training period; it does not require the exercise of special skills of the kind traditionally exercised by members of the bookbinders' craft. We are also mind- ful of the fact that, outside the New York City metropolitan area, sealing work on Automatic sealers has customarily been assigned to bookbinders. But we do not regard this industry practice elsewhere to be of controlling significance in view of the 31-year custom to the contrary in the area where this case arises. We also note in this con- nection, that, unlike the situation elsewhere, the binderies -in• the New York City metropolitan area do not themselves own Automatic' s seal- ing machines; 4 the testimony of a number of bindery employees dis- closes that it would be uneconomical for their to purchase the ma- 8 Cf. Local 585 of the Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO (Bishopric Products Company), 140 NLRB 1304, 1311 , Local 853, International Union of Operating Engineers, AFL-CIO, et al. (Schiavone & Sons, Inc., it al.), 13G NLRB 993, 998. 4 Local 119 makes certain arguments going to alleged violations of the Federal antitrust laws by Automatic we do not here concern ourselves with the validity of those argu- ments or the issues they pose, for such matters are immaterial herein and are outside our jurisdiction. NEW YORK PAPER CUTTERS', ETC., • LOCAL UNION 119 441. chine; and Automatic's employees, who have been assigned the- work, have performed it to the satisfaction of those concerned for about 30 years. All these circumstances support the continued assignment of the work to Automatic's employees. On the basis of the entire record, therefore, we shall determine the existing jurisdictional controversy by awarding to Automatic's em- ployees, rather than to the employees represented by Local 119, the work of operating or running the Automatic sealer machine which is herein in dispute. The present determination is limited to the par- ticular controversy which gave rise to this proceeding. We find, accordingly, that Local 119 is not and has not been en- titled, by means proscribed by Section 8(b) (4) (i) and (ii) (D) of the Act, to force or require the assignment of the disputed work to its members or to journeymen bookbinders it represents, rather than to the employees of Automatic, who are currently unrepresented. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings and the entire record in the case, the Board makes the following Determination of Dispute pursuant to Section 10 (k) of the Act: 1. Employees employed by Automatic Sealing Company as op- erators of its automatic sealing machine at the binderies involved herein are entitled to perform the work in dispute. As a consequence, Local 119, International Brotherhood of Bookbinders, AFL-CIO, is not entitled to force or require the aforesaid companies to assign the disputed work to its members or to bookbinder employees it rep- resents, by means proscribed by Section 8(b) (4) (i) and (ii) (D) of the Act. 2. Within 10 days from the date of this Decision and Determin- ation, Local 119 shall notify the Regional Director for the Second Region, in writing, whether or not it will refrain from forcing or re- quiring, by means proscribed by Section 8(b) (4) (i) and (ii) (D) of the Act, the assignment of the work in dispute in a manner incon- sistent with the above determination. MEMBER FANNING, dissenting : I do not believe the dispute in this case is properly cognizable under Sections 10 (k) and 8(b) (4) (D). As set forth in the majority opinion, this dispute arose as a con- sequence of serious unemployment among members of Local 119. In March 1963, that Union began receiving calls from its members pro- testing the presence of "non-union" employees performing work on sealing machines in bindery shops under contract to Local 119. Re- 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD- sponding to these protests, the Union for the first time in 30 years asserted that the work on these machines was unit work, that it could not be performed off the bindery premises, and that such machines would have to be "covered" by a journeyman member of Local 119. The record indicates that Respondent's demand with respect to this work was fully satisfied when the bindery employers assigned one of its members to assist an employee of Automatic in the operation of these machines. Respondent argues that the issue in this case relates solely to the question whether it could lawfully protest the subcontracting of unit work. Without passing on the merits of Respondent's argument that the operation of Automatic's sealing machines was, indeed, unit work and that such work was lawfully sought by Respondent for unit em- ployees, I believe the Respondent has properly framed the essential nature of this dispute. This is not a case where a union, representing a class, group, or craft of employees, claims for such employees by virtue of history, tradition, practice, or custom in the industry the right to perform a particular task. Indeed, it appears from the rec- ord that the skills of bookbinders are not necessarily involved in the operation of these machines. While bookbinders apparently could be taught this method of sealing pamphlets, it is clear that in the New York area only Automatic's employees are fully capable of per- forming this specialized work. The Respondent has made no claim that such work should be assigned to its members on jurisdictional grounds. It has not sought to organize Automatic's employees, nor has it sought to require Automatic to reassign the work on these ma- chines from its own employees to bookbinders, members of Local 119. The entire thrust of Respondent's conduct is directed to bindery employers with which it has contractual agreements. Its purpose is not to secure the reassignment of sealing work, wherever it occurs, but to prevent the removal of such work from bindery premises where it claims the right to employment by virtue of its contract rather than union, or group jurisdiction. Even this limited claim has been ameliorated by Respondent's recognition of the fact that its members are not fully qualified to operate the sealing machines. Thus, at Charlton Bindery, Trade Bindery, and Acme Impression, members of Respondent were assigned to work with employees of Automatic in full satisfaction of Respondent's demands. On the basis of the foregoing I am satisfied that this is not a jurisdictional dispute of the type contemplated by Congress in Sec- tions 10(k) and 8(b) (4) (D) of the Act. The resolution of this dispute should be accomplished, in my view, by the application of other provisions of the statute. I, therefore, would quash this notice of hearing.