St. Paul Printing Pressmen, Etc., Union No. 29

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After a careful analysis of the record evidence and upon a full consideration of the Board's decisions deemed pertinent herein, I am of the opinion that Resort's operations are closely integrated with those of the raceway and that jurisdiction should not be asserted in this proceeding. Thus, in this connection , like Pinkerton, Resort's employees perform their serv- ices solely at the racetrack and at locations and work stations physically interspersed throughout the grandstand area of the track, and to a lesser extent, in other areas of the raceway as well . Moreover, Resort's operations are devoted entirely to the service of food and beverages to customers and racetrack personnel . The services Resort provides, while not absolutely essential to the functioning of the racetrack, are an integral attribute of a facility such as a racetrack devoted , in the final analy- sis, to the entertainment and diversion of its patrons, and are, accordingly, a feature expected and demanded by the track's patrons . Accordingly, I am convinced that Raceway is dependent upon the restaurant and concession facilities of Resort not only for revenue but to fulfill the demands of its patrons and track personnel, and that, as a consequence, there exists an extensive interrelationship between the opera- tions of Resort and those of Raceway. A further factor pointing to Resort's close identification with Raceway and the racing industry generally is the degree of regulation , as found above, exercised by Raceway and the Harness Racing Commission over aspects of the employment rela- tionship relating to Resort's hire and retention of personnel, a factor differentiating Resort from the typical restaurateur which is subject only to the usual licensing ordinances and health and safety regulations extant in the restaurant industry generally. Accordingly, on the basis of the foregoing considerations I conclude that Resort is an enterprise closely identified with the racing industry , and its operations are in- extricably associated with those of the raceway . In view thereof, it is apparent that any disruption of Resort's operations arising out of a labor dispute, either primary or secondary, involving Resort's employees would have a foreseeable , likely, and immediate adverse impact upon the operations of the raceway. As the Board found in the Kelley case, the State of New York has a strong interest in insuring uninterrupted operations at racetracks . Thus, here , as in Kelley, it would be reason- able to anticipate that in view of the vital interest the authorities of the State of New York would act with dispatch to resolve any labor dispute involving Resort's employees arising at the racetrack. Moreover, in light of the recognized interest of the State of New York in the un- interrupted operations of the raceway , and in recognition also of the potential com- plexities and complications that under the doctrine of Federal preemption fore- seeably could result from the enmeshing of the legal processes of State and Federal authorities, if, contrary to my decision here, the Board would assert jurisdiction over Resort while declining it over Raceway, sound administration of labor rela- tions policy would seem to be best served by leaving to the State of New York, authority to act in any labor dispute arising at the raceway involving Resort's employees. In view of this consideration, and in light of the expressed policy of the Board that the effect of labor disputes involving operations in the racing industry is-not likely to have sufficient impact on interstate commerce to warrant the exercise of its jurisdiction, I shall recommend that the complaint herein be dismissed. RECOMMENDED ORDER Upon the foregoing findings and upon the entire record of the case, I recommend that the complaint herein be dismissed. St. Paul Printing Pressmen and Assistants' Union, No. 29 and Webb Publishing Company. Case No. 18-CD-33. August 5, 1964 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, following a charge filed April 21, 1964, by Webb 148 NLRB No. 19. ST. PAUL PRINTING PRESSMEN, ETC., UNION NO. 29 215 Publishing Company, designated herein as the Employer, alleging that St. Paul Printing Pressmen and Assistants' Union, No. 29, designated herein as IPP, had violated Section 8 (b) (4) (D) of the Act. A duly scheduled hearing was held before Hearing Officer David R. Hols on May 14 and 15, 1964. All parties appearing were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. The IPP has filed a brief which has been duly considered by the Board. Upon the entire record in the case, the Board 1 makes the following findings : 1. THE BUSINESS OF THE EMPLOYER Webb Publishing Company is a printing and publishing concern producing telephone books, magazines, and other printed material at its plant located in St. Paul, Minnesota. During the 12-month period immediately preceding the filing of the charges herein the Employer made sales of goods outside the State of Minnesota in excess of $500,000 and its gross sales amounted to more than $5 million. The parties stipulated, and we find, that the Employer is engaged in com- merce'within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The IPP and the St. Paul Typographical Union No. 30, designated herein as ITU, are labor organizations within the meaning of the Act. III. THE DISPUTE A. The work at issue About 50 percent of the Employer's present production involves printing by the offset method. The preparation of offset plates often involves the use of a reproduction proof. A reproduction proof is a high-quality proof that is taken from a page of type on a hand- operated proof press to be photographed, the photograph to be used for the manufacture of an offset plate. The only work in dispute is that involved in making, or pulling, reproduction proofs by the proof press method. B. Evidence of conduct violative of Section 8(b) (4) (D) For approximately the past 35 years the Employer has been making reproduction proofs by the proof press method. Until about 2 years ' 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 [ Members Leedom, Fanning, and Brown]. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ago, however, this work was a minor aspect of the Employer's opera- tion. The pulling of such proofs was performed almost entirely by members of the IPP. In January 1964, the Employer received a demand from the ITU that it be assigned the work of pulling repro- duction proofs. In April 1964, the Employer wrote both the ITU and the IPP stating that it intended to take the work of pulling reproduction proofs from employees represented by the IPP and re- assign it to members of the ITU. On April 10, 1964, the IPP wrote the Employer stating that if the work were reassigned to members of the ITU, the IPP would be com- pelled to strike and picket the plant. On April 29,1964, the Employer reassigned the work to members of the ITU. Although there has been no picketing by the IPP as yet, IPP's threat to strike and picket has not been withdrawn. As a result, on April 20, 1964, the Employer filed charges alleging that the IPP violated Section 8 (b) (4) (D) of the Act. C. Contentions of the parties The ITU claims the work on the ground that. its contract with the Employer awards to the ITU jurisdiction over "proof press operators" and "employees engaged in proofing." The ITU also claims that, as a matter of industry practice, printing concerns in the Twin Cities area have the work of pulling reproduction proofs performed by members of the ITU. - The IPP, on the other hand, also relies upon its contract which awards to that Union jurisdiction over the operation of "all letter presses and presses of a specialty nature" as well as "all proofing." In addition, the IPP relies upon the fact that its members have per- formed practically all the disputed work for approximately the last 35 years, and upon a claim that the pulling of reproduction proofs requires special skills which are associated with pressmen rather than typographers. Although the Employer reassigned the work to the ITU, it takes the position that it has no preference as to which em- ployees perform the work, its only concern being that the same em- ployee who operates the reproduction proof press should be able to make "overlays" and "underlays," and perform other makeready work associated with the pulling of reproduction proofs. D. Applicability of the Statute Section 10(k) of the Act empowers the Board to determine the dispute out of which a Section 8(b) (4) (D) charge has arisen. How- ever, before the Board proceeds with a determination of dispute, it must be satisfied that there is reasonable cause to believe that Sec- tion 8(b) (4) (D) has been violated. ST. PAUL PRINTING PRESSMEN, ETC., UNION NO. 29 217 As set forth above, Respondent concedes that it threatened to strike and picket the Employer in the event the Employer assigned the work of pulling reproduction proofs by the proof press method to members of the ITU. The Employer subsequently assigned said work to mem- bers of the ITU, and Respondent, while not yet causing a work stop- page or picketing the Employer's plant, has not withdrawn its threat to do so. Accordingly, we find, on the entire record, that there is reasonable cause to believe that a violation of Section 8(b) (4) (D) has occurred and that the dispute is properly before the Board for determination pursuant to Section 10(k) of the Act. E. Merits of the dispute As we stated in the J. A. Jones case,2 we will, pursuant to the Su- preme Court's decision in CBS,' determine in each case presented for resolution under Section 10(k) of the Act, the appropriate assign- ment of disputed work only after taking into account and balancing all relevant factors. The following factors are asserted in support of the claims of the parties herein : 1. Certification; contract; and Employer's assignment Neither the IPP nor the ITU has been certified by the Board with respect to any employees involved in the instant proceeding. Al- though both labor organizations have contracts with the Employer, the contracts are of little practical importance since, as noted above, both contracts contain general provisions which might be construed as assigning the work of pulling proofs to the particular contracting union, but neither agreement specifically covers pulling reproduction proofs. At the hearing the Employer did not assert the supremacy of one contract over the other, and, as indicated, its position in this proceeding is that it has no preference as to which employees per- form the work. 2. Work skills The record shows that special skills are required to perform the work in question. Since a reproduction proof must be of exception- ally good quality, on occasion it is necessary to sand down type that is too high, or build up type that is too low, to make adjustments in the packing of the press, and to perform other work necessary to assure a perfect or nearly perfect proof. While the record shows that there is at least one employee represented by the ITU capable of per- 2International Association of Machinists, Lodge No. 143 (J. A. Jones Construction Company), 135 NLRB 1402. 8 N.L.R.B. v. Radio & Televiswn Broadcast Engineers Union, Local 1212, et al. (Colum- bia Broadcasting System), 364 U.S. 573. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forming such work, the ITU does not dispute that the making of overlays, underlays, and other makeready work are the normal func- tion of pressmen, i.e., members of the IPP. While it appears that the use of certain new materials has reduced the incidence when such adjustments are required, it is undisputed that such adjustments have not been eliminated. The record also shows that an occasion may arise when it is neces- sary to unlock the chase and replace material which is incorrect or defective. Such work is concededly within the exclusive jurisdiction of the ITU. But such occasions are rare since the page of type and all other material used for reproduction proofs is carefully checked from galley proofs prior to being locked in the chase for use in the making of a reproduction proof. The making of overlays, underlays, and other makeready work, however, is a more frequent problem, and one which the Employer has indicated is his primary concern. 3. Employer; industry; and area practice As noted above, the work of pulling reproduction proofs had been the work of IPP members for about 35 years preceding April 29, 1964, when the Employer reassigned the work to ITU members. Dur- ing that 35-year period, ITU members performed less than 10 percent of this work. Although the record shows that other employers in the area utilize ITU members for pulling reproduction proofs, it appears that these employers unlike the Employer herein operate what is known as "trade shops"; that is, shops that produce reproduction proofs for use by other printing establishments, but do not perform any produc- tion printing themselves and, therefore, do not employ pressmen. Al- though there are area shops that do employ pressmen and neverthe- less utilize the services of ITU members to pull reproduction proofs, the evidence is insufficient to establish that such utilization represents a definite area practice. Thus, while the record is clear that the Em- ployer's traditional practice has been to use the services of IPP mem- bers for pulling reproduction proofs, we cannot find that there is an area practice which runs counter to the historical practice of the Employer herein. 4. Efficiency and economy of operation The Employer stated at, the hearing that in its opinion the efficiency of the operation will be, the same regardless of who performs the work. It appears, however, that since April 29, 1964, when the dis- puted work was assigned to the ITU, and as a result of this dispute, the Employer has utilized the "Bright-type" rather than the proof INTERSTATE SMELTING AND REFINING CO. 219 press method for obtaining reproduction proofs. The record indi- cates that this method, which enjoyed more extensive use in the past, is less efficient and more expensive than the proof press method. F. Conclusions as to the merits of the dispute On the basis of the whole record, and on appraisal of the relevant considerations, including the fact that the disputed work has been performed by members of the IPP for the past 35 years without ob- jection by the ITU 4 and the fact that the skills most significant in connection with the pulling of reproduction proofs are, as the ITU does not dispute, commonly associated with pressmen rather than typographers, we shall determine the existing jurisdictional dispute by deciding that the pressmen rather than the typographers are en- titled to the work of pulling reproduction proofs by the proof press method. The evidence on the record that some employers in the area utilize the services of typographers to perform this work does not, in our view, overcome the factors set forth above militating in favor of assigning the disputed work to the pressmen. We shall, therefore, assign the disputed work to the pressmen. Our present determina- tion is limited to the particular controversy which gave rise to this proceeding. In making this determination, we are assigning the dis- puted work to pressmen employees represented by the IPP, but not to IPP or its members. DETERMINATION OF DISPUTE Upon the basis of the foregoing and the entire record in this case, the Board makes the following Determination of Dispute pursuant to Section 10(k) of the Act : Pressmen currently represented by the St. Paul Printing Pressmen and Assistants' Union, No. 29, are entitled to perform the work of pulling reproduction proofs by the proof press method for the Webb Publishing Company. * We find it difficult to accept the ITU's contention that its long period of acquiescence in this practice is attributable to the fact that it was unaware that IPP members were performing the work. Interstate Smelting and Refining Co. and International Molders and Allied Workers Union, AFL-CIO. Case No. 13-CA-5803. August 6, 196.E DECISION AND ORDER On April 13, 1964, Trial Examiner George L. Powell issued his De- cision in the above-entitled proceeding, finding that the Respondent 148 NLRB No. 24.