N.Y. Newspaper Printing Pressmen's Union No. 2

770 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD months without a shipping clerk and suffered no loss. It is highly improbable that Respondent would have hired an admittedly inexperienced ' shipping clerk as super- visor of the drivers. - As to, the allegation that Gutierrez was discharged because he sought to join Local 27, the sole evidence is the testimony of Gutierrez himself and this' is con- fined to the conversation which took place between Gutierrez and Kleinman in the presence of Ronda and Leggio on May 15. It is to be noted that Gutierrez' testi- mony that Kleinman told Leggio he was fired because he wanted to join the Union was not corroborated by Leggio who, as a representative of the Charging Party, might be presumed to be favorable to Gutierrez .6 Nor does it seem other than totally irrational that Kleinman, accustomed to dealing with unions , would, after having been told the purpose 'of Leggio's visit, wait until Gutierrez appeared and then tell Leggio that he had fired Gutierrez because he wanted to join the Union. It may be a suspicious circumstance that Kleinman informed Leggio that Gutierrez had been fired "2 weeks ago" on the 'very morning that Leggio approached him to 'bargain concerning Gutierrez' wages and conditions of employment and to advise him that Gutierrez had applied for membership . Resorting to the cliche that suspicion is not proof I cannot find that this,circumstance and Gutierrez' inherently incredible testi- mony are sufficient to support a finding of violation and in the words of Ethel Barry- more, "That's all there is, there isn't any more." Respondent had contracts with two unions, there is no evidence of hostility toward union membership and the fact that Respondent might have to bargain for one' more employee implied no grave threat to its economic posture. ? There is evidence of a lack of candor on the part of most of the' witnesses to this proceeding but to support the General Counsel I would have to credit Gutierrez in full 8 Neither his testi- mony nor his demeanor was worth such an extension of credit. This case does not merit extended discussion and it appears to be another in that crescive class'of cases where the investigatory machinery of the Agency has failed to resolve a simple credibility issue and it has been sent to hearing for that lone purpose. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW Respondent has not engaged in unfair labor practices within the meaning of Sec- tion 8 (a)(3) and (1) of the Act. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. 6It is not an irrebuttable presumption , at least in the Metropolitan area of New York, that an agent of a labor organization will favor employees or members as against employers. 7 There Is testimony indicating that Moon paid the replacement for-Guti 'errez $125 per week. - 8 If the case were to rest on speculation , there is the possibility that Gutierrez , having been notified of his discharge , prior to May 15, 'applied for -membership in Local 27 for such protection as it might afford him . Kleinman ' s testimony as to the reason, Gutierrez gave him for requesting a postponement of the discharge for 2 weeks is a plausible one. New York Newspaper Printing Pressmen 's Union No.- 2, AFL- CIO. and-The New York, Times Company and New York Stereo- typers' Union No. 1; Publishers' Association of New York City, Parties in Interest. Case No. 2-CD-988. December 31, 1964 'DECISION AND DETERMINATION OF DISPUTE., This is a proceeding under Section 10(k) of the National Labor Relations Act, following the filing of charges under Section 8(b) (4) (D) by The New York Times Company (herein called, the Em- 150 NLRB No. 69. N.Y. NEWSPAPER PRINTING PRESSMEN'S UNION -NO: 2 771• ployer). The charges alleged that the New York Newspaper Print- ing Pressmen's Union No. 2, AFL-CIO (herein called the Re- spondent) had threatened; coerced, and restrained 'the Employer and induced and encouraged its empolyees to engage in a strike and a refusal in the course of their employment to use, process, trans- port,' and otherwise handle and work on goods, articles, materials, and commodities, and to perform certain services with an object of forcing and requiring the Employer to assign certain work in- volving the inspection and marking of plates, the operation of mechanical conveyors, and all other work taking place between the cooling arch of the Wood Supermatic_plate casting equipment and Jampol plate pusher to members of the Respondent rather than to members of the New York Stereotypers' Union No. 1- (herein called the Stereotypers).1 -, A hearing was held before Hearing- Officer Irwin M. Portnoy on April 28, -29, and 30, and May 1, 1964. All parties' except the Publishers' Association of New - York City appeared and all were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on. the issues. The `rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. The Employer, the Respondent, and the Stereotypers have filed briefs which have been ' duly considered by the Board. Upon the entire record in this case the Board makes the, following findings : 2 I. THE EMPLOYER INVOLVED . The parties stipulated and we find that The New York Times Company is the published of Sunday and daily newspapers, holds membership in interstate news services, advertises nationally sold products, and has a gross annual volume of business in excess of $200,000. As such volume meets the Board's standards for assertion of jurisdiction over newspapers, we find that The New York Times Company is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of -the Act to assert jurisdic- tion herein. IT. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that New York Newspaper Printing Pressmen's Union No. 2, AFL-CIO, and New York Stereotypers' Union No. 1 are labor organizations as defined in the Act. , All of the above-captioned parties, with the exception of the Publishers ' Association of New York City ( herein called the Association ) participated in the hearing . The Asso- ciation did not enter an appearance. 2 Pursuant to the provisions of Section 3(b) of the Act , as amended, the Board has delegated its powers in connection with this case to a three -member panel [Members Fanning, Brown, and Jenkins]. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. THE DISPUTE The particular incident encompassed by the charge, and before the-Board in this proceeding, involves the Employer's use on Decem- ber •3, 1963, of new Wood Tensionplate Supermatic machinery to produce and finish plates at its. West 43d Street,' New York, City, printing plant, and' its stationing of a stereotyper at the end of the machine, adjacent to a new continuous (Jampol plate pusher), con= veyor connected with the main conveyor to the presses. In colinec- tion with previously used noncontinuous machinery such stereotyper was stationed some 10 feet farther toward the begining of the, plate casting operation. The Respondent does not dispute that it caused a'work stoppage and that its object was that alleged in the charge. The Employer and other newspapers in the New York City area have a contractual relationship' with both' the Respondent and the Stereotypers --through their membership in the Association.' 'This relationship has been adverted to as of long standing by the Board in a prior case.3 None of the contracts expressly covers all the work alleged to be in dispute .4 ` The 'Employer utilized exclusively a noncontinuous plate casting and finishing process prior to July 1962. Plates were produced by this process solely at its, West 43d Street, New York City, plant and some were shipped to its West End Avenue plant, which` prior to that time did not produce or finish plates but only engaged in- print- ing. At its West 43d Street plant the Employer had assigned four stereotypers, as follows : The first stereotyper fed lead into a furnace where it was heated to a molten form. The second stereotyper placed mats of fibrous material bearing the imprint of a page (which was set in type in the composing room) in a casting machine, 'into which the molten lead was poured, thus producing a cast' of semi- cylindrical printing plate. The third stereotyper lifted the cast plate off the casting machine, put it on an adjacent table, ,and put excess metal which the- casting machine had cut from the plate back into the furnace for remelting. The fourth stereotyper picked up the plate from the table, inspected it for latent and patent defects which may have been caused in casting, marked the plate with a folio number, and then sent it through the shaver,5 miller,6 and 3 Publishers' Association of New York City, et at., 139 NLRB 1092, 1093 4 The current contract with the Stereotypers expressly covers 'inspection of plates: The prior contract with the Stereotypers , as amended , covered expressly the adjustment of any temporary mechanical difficulty in the conveyor leading from the Supermatic to the auto- matic ( Jampol ) plateboy at The New York Times' plants. 5 The shaver performs the function of shaving the bottom or inside of the plate to give it the correct thickness to fit the presses. 0 The miller grooves the bottom of the plate . The grooves in the plates are designed to fit grooves in tension lockup presses If there is not an accurate fit, the plates will fly off the presses, causing damage to property and possible injury to employees. N.Y. NEWSPAPER PRINTING PRESSMEN'S UNION NO. 2 773 cooling arch,? observing whether these operations were functioning properly. If he observed such machines were not running properly, 'he would signal a plateboy stationed at a short conveyor beyond the cooling arch, to return the plate to' the stereotype department. The plateboy -lifted the plate from the end of the short' conveyor onto the two-way main conveyors to the printing presses, and while doing so, checked the plate for obvious defects and folio numbers. The plateboy also marked press numbers on the plates so that the'plate- boy at the numbered press could take off the plate for that press. The journeyman pressman also inspected plates for obvious defects and -returned' them to the stereotype' department if defective, as it was that department's primary responsibility to inspect the plates.8 In July 1962 the-Employer installed continuous process machinery -(Wood Tensionplate Supermatic), with the caster, shaver, miller, and cooler in one enclosed machine, to produce and finish stereotype plates at its West End Avenue plant. It also installed a continuous conveyor from such machine to the main conveyor to the presses, and an automatic one-way conveyor, which eliminated the need for marking of press numbers and the need for a plateboy near the main conveyor. ' Pursuant to a settlement agreement between the Stereo- typers and the Employer, referred to• infra, the Employer assigned two stereotypers to the machinery. The first stereotyper fed a mat into one end of the machine and started it. The second stereotyper lifted the plate out at the other end (the cooling arch end),'in- spected it and marked it with the folio number, then placed it back on the conveyor where an automatic Jampol plate lowering.device lowered it onto the main conveyor to the presses. From there it went-to the proper press where a plateboy and journeyman press- man were stationed, performing the same functions they had before. The Respondent has never objected to the Employer's assignment at this West End Avenue plant. On December 3, 1963, the Wood Tensionplate Supermatic machin- ery was installed at the West 43d Street plant, replacing some of the noncontinuous Wood automatic plate caster and allied machinery. Continuous conveyors were also 'installed from such machinery to the conveyors to the presses, and a Jampol plate pusher was also installed which eliminated the need for a plateboy to lift the ,plates.9 7 This is the last step in the production and finishing of stereotype plates. There the plates are cooled by water. 9 There is testimonial conflict as to whether the fourth stereotyper could inspect plates for shaving and milling defects, as the,plates passed out of his control before the shaving, milling, and cooling operations under the noncontinuous , process. However, we find .that the stereotyper did such inspection , visually and by listening to the sound of the machines 9 The Jampol plate pusher at the West 43d Street plant is at the same relative location in-the process and performs the same function as'the Jampol plate lowering device at the West End Avenue plant. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When the Employer assigned two stereotypers to the new machinery, and the second stereotyper was observed doing the inspecting for obvious defects in the plates, the Respondent struck, admittedly for the purpose of compelling the Employer to assign all work between the .cooling arch and the Jampol plate pusher, including inspection and marking of plates and clearing jams on the conveyor, to plate- boys represented by it instead of to stereotypers represented by the Stereotypers to whom the Employer assigned the work. IV. CONTENTIONS OF THE PARTIES The Respondent in its brief concludes with a claim of all work described in the charge, although at one point in its brief its dis- claimed any other work than marking and inspecting plates and operating the mechanical conveyor. Its claim is premised chiefly' on two bases, one, that plateboys stationed at the end of the cooling arch under the noncontinuous process have always performed the sole manual inspection for obvious defects in the plates , including milling and shaving, and have always checked the folio numbers and trim in the Employer's plant and in all plants in the New York City area; and two, that its members are not only qualified to per; form , such duties but are , required to perform them in order to become journeymen,, and if not permitted to continue to perform them, destruction of its journeymen program will occur. It also makes other contentions discussed infra. The Stereotypers claims all the work which the Employer has assigned to employees represented by it. Its claim is in part but- tressed on the same bases argued by the Employer; i.e., that the assignment is in accordance with contract , tradition, New York area and nationwide practice, and, the practice at the West End Avenue plant. The Stereotypers also argues that only its members are qualified to perform all the inspection and that considerations of safety, efficiency, and economy favor the assignment to them. V. APPLICABILITY OF THE STATUTE As observed, supra, the Respondent has conceded in its brief that a jurisdictional dispute exists. The record shows that when the Jampol plate pusher was placed in operation the president of the Respondent issued orders to the plateboys not to handle plates from the Supermatic until the stereotyper, who was to perform inspection work, was moved back from his station after the cooling arch. ' It is clear, and we find, that an object of the Respondent 's orders was as alleged in the charge' and, on the basis of the entire record before us, we find that there is reasonable cause to believe that a violation N.Y. NEWSPAPER PRINTING PRESSMEN'S UNION NO. 2 775 of Section 8 (b) (4) (D) of the Act has occurred and that the dispute is properly before the Board for determination under Section 10(k) of the Act. VI. THE MERITS OF THE DISPUTE Section 10(k) of the Act requires the Board to make an affirma- tive award of disputed work, after giving due consideration to vari- ous relevant factors. The following factors are asserted in support of the claims of the parties herein : 1. Collective-bargaining agreements. The Employer and the Stereotypers rely on the contract effective from March 31, 1963, to March 30, 1965, between the Association and the latter as expressly giving jurisdiction to the Stereotypers over the inspection and mark- ing up of plates and the adjustment of mechanical difficulties such as jam-ups in the portion of the plate conveyor leading from the Supermatics to the Jampol plate pushers. The Stereotypers relies also on a settlement agreement amending the prior agreement and incorporated by reference in the above agreement.1° The Respond- ent appears to have abandoned its contention, made at the hearing, that its collective-bargaining agreement effective from December 8, 1960, to December 7, 1962, with the Association gives it jurisdiction over this work. In any event, we find that there is nothing in this agreement which expressly gives the Respondent jurisdiction over the work in dispute. On the other hand, we find that the current Stereotypers agreement alluded to does expressly give it jurisdiction over inspection of plates and adjustment of mechanical difficulties in the conveyor, although it does not expressly give it jurisdiction over the other claimed work." 2. Natiowwide, New York City area, and Employer practice. The evidence as to a nationwide practice on the noncontinuous process appears to be inconclusive. However, Craemer, secretary-treasurer 10 The settlement agreement is in the form of a letter of May 29, 1962 , in which the Stereotypers contract effective December 8, 1960, was amended as it affected the Em- ployer. It provided for no less than two journeymen to operate a Wood Supermatic, thus compromising the claim of the Employer that only one rather than four as formerly was needed to operate the new machine and operate the mechanical conveyor to the automatic plateboy It expressly applies to all Supermatics at either plant of the Employer provided they are substantially similar to those installed at the West End Avenue plant. 11 Section 40 of the current agreement , entitled "MANNING," provides that manning of machines or equipment as an addition to or as nonidentical replacement of machinery or equipment presently manned by stereotypers shall be in accordance with agreement of the parties, or, in the event of a dispute between them , by the Joint Conference Commit- tee. It provides further, however , that the manning of Wood Supermatic casting machines at The Times and the Daily News shall be in accordance with the settlement agreements incorporated by reference The Times agreement, dated May 29, 1962, provides , -inter alie, that one of two stereotypers assigned to such machine shall have the duty to "adjust any temporary mechanical difficulty . . . in that portion of the plate conveyor leading from the machine to its automatic plate boy ." Section 43 of the current agreement , entitled "JURISDICTION," states : "The jurisdiction of the Union shall include : all branches of stereotyping . . . and all other methods of duplicate printing plate making . . . the casting and molding of plates . . . for printing . . . the inspection and finishing and every process for the completing of such plates for printing and other purpose." 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Stereotypers, testified that in all 17 plants which had Super- matics in 1962, only stereotypers represented by his Union marked page numbers on the plates 12 and inspected them for latent and patent defects, including shaving and milling, and that in all in- stances such inspection was after the cooling process. However, Craemer admitted that the journeymen pressmen rejected plates that were not properly shaved or milled, if they escaped the primary inspection. The evidence as to New York City area practice on the noncon- tinuous process is also inconclusive. However, it is undisputed that upon the advent of the Supermatics at the New York Daily News 13 and the Employer, the only New York City papers utilizing such machines, the stereotypers inspected for both latent and patent de- fects, including shaving and milling, and marked pages where ma- chines had no automatic numbering device. In fact, as observed, the Respondent has never objected to the work of the stereotypers at the West End Avenue plant where only Supermatics are utilized. On the other hand, prior to 1962 there were posted in both plants of the Employer instructions that plateboys were to "check all plates to see that they are properly milled." Also, in March 1959 at the 43d Street plant there were posted job instructions to pressroom juniors assigned to a shaver to, inter alia. "Keep plates from jam- ming in the conveyor from the shaver ..."; "Check the folio on the first plate in each series to be sure it corresponds with the number put on the plate by the shaver operator"; "Mark the proper press number on each plate";' "Watch for bad trim, hot plates and other obvious defects and call them to the attention of the head plateboy." In December 1955 a "Manual for Juniors" had been issued in the pressroom containing the same instructions above. While the in- structions remained posted until shortly before the hearing in this case, the evidence is inconclusive as to whether they remained job requirements after the advent of the Supermatics. Prior to the ad- vent of the Supermatics, the practice at the Employer appears to have been for the stereotypers to perform the complete primary inspection at the shaver, including the marking of page numbers, while the plateboy in the pressroom took care of the conveyor from the cooler and lifted the plates from it to the main conveyor to the presses, while incidentally making a check for obvious plate defects which would be called to the attention of the stereotype department, which bore primary responsibility. '12 In some plants the Supermatic machines contained automatic numbering , thus elimi- nating the need for anyone to mark the page numbers on the plates. 18A settlement agreement dated August 8, 1962, pertaining to the Daily News is, like the Employer's settlement agreement, incorporated into and made a part of the Stereotypers contract of March 31 , 1963. It is similar to that made with the Employer , but because there is a wall at the Manhattan plant beyond the cooling arch, inspection is made by lifting the cover thereof. - ' N.Y. NEWSPAPER PRINTING PRESSMEN'S UNION NO. 2 777 3. Skill and training. The Respondent does not • dispute that stereotypers represented by the Stereotypers for years have been trained to inspect plates under their apprentice program. It also does not dispute that its members have no training in inspection for latent defects. However, it does dispute that the stereotypers at the Employer, prior to the advent of the Supermatics, were trained to perform manual inspection for obvious defects and it points out that prior thereto the stereotypers had no responsibility over the con- veyor. While it does not appear that the marking of plates involves any greater skills possessed by stereotypers than by plateboys, it also does not appear that the plateboys are qualified to inspect for latent defects. Further, it does not appear that inspection for obvious defects, or clearing the conveyor, involves any greater skills pos- sessed by plateboys than by stereotypers at the Employer's plants. 4. Safety, efficiency, and economy of operation of- Wood Super- matics. While the testimony is conflicting, it would appear " to be safe and efficient to inspect the plates emanating from the Wood Tensionplate Supermatic only after the cooler. At any rate this is the Employer's assessment of the situation and we are not convinced otherwise by the record. It would in our view be inefficient and uneconomical for the Employer to station two employees side, by side, the one, a stereotyper, to inspect for latent defects, the other, a plateboy, to mark the plates, inspect for obvious defects, and clear jams on the conveyor. Commonsense as well would appear to sup- port the reasonableness of the Employer's assignment.14 It appears that the introduction of automatic plate movers (Jampol plate pushers) has eliminated the need for a plateboy where the stereo- typer now stands. We observe, at this point, that the Wood Super- matic has also resulted in a reduction from four to two stereotypers. 5. The Respondent's apprenticeship program. This aspect of the case is dealt with separately from the training and experience of members of Respondent because the evidence shows that the actual experience received by plateboys in the plants of the Employer does not include all the training described in the correspondence course required for apprentice pressmen. While it is conceivable that such complete experience might be required of plateboys in those few plants utilizing noncontinuous machinery, where plateboys appear to perform duties herein performed by stereotypers, there is no evi- dence that in the plants of the Employer plateboys in fact gained practical experience in all phases of such course. Further, the evi- dence is inconclusive as to whether all journeymen pressmen at the Employer had been plateboys or apprentices at all. Thus, there is 141nternataonal Association of Machinists, Lodge No '1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402, 1410-1411. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no showing that an assignment of the work to stereotypers will prejudice the Respondent in its apprenticeship program. Conclusion Upon the record as a whole, we believe that stereotypers, rather than plateboys, are entitled to the work in dispute. In reaching this conclusion, we rely on the settlement agreement of May 29, 1962, between the Employer and the Stereotypers, the current collective- bargaining agreement between the Association, of which the Em- ployer is a member, and the Stereotypers, the prior nationwide, New York City area, and Employer practice concerning the disputed work under the continuous processes, the skills of stereotypers, and safety, efficiency, and economy of the operations. Based upon the foregoing, we determine that the disputed work of marking and inspecting plates, operating the mechanical conveyor, and all other work between the cooling arch of the Wood Tension- plate Supermatic machine and the Jampol plate pusher belongs to stereotypers.16 In making this determination we are, of course, assigning the disputed work to the employees represented by the Stereotypers and not to that Union or its members. Accordingly, we find that the Respondent is not entitled by means proscribed by Section 8'(b) (4) (D) of the Act to force or require the Employer to assign the disputed work to its members rather than to employees represented by the Stereotypers. 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 engaged as stereotypers, currently represented by New York Stereotypers' Union No. 1, are entitled to perform the inspection and marking of plates, the operation of mechanical con- veyors and all other work between the cooling arch of Wood Ten- sionplate Supermatic Machines and Jampol plate pushers at the plant of The New York Times Company at West 43d Street, New York City. 2. New York Newspaper Printing Pressmen's Union No. 2, AFL- CIO, is not entitled by- means proscribed by Section 8 (b) (4) (D) to force or require The New York Times Company to assign work be- tween the cooling arch of any Wood Tensionpiate Supermatic ma- 15 Cf. Newspaper and Mail Deliverers' Union of New York City and Vicinity ( The New York Times Company), 142 NLRB 704, 707. UNITED BROTHERHOOD CARPENTERS, ETC., LOCAL 526 779 chine and its Jampol plate pusher to employees engaged as plate- boys, who are currently represented by the New York Newspaper Printing Pressmen's Union No. 2, AFL-CIO. 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, New York Newspaper Printing Pressmen's Union No. 2, AFL-CIO, shall notify the Regional Director for Region 2, in writing, whether or not it will refrain from forcing or requiring the New York Times Company by means proscribed by Section 8 (b) (4) (D) to assign the work in dispute to plateboys rather than to stereotypers. United Brotherhood of Carpenters and Joiners of America, Local 526, AFL-CIO, and Its Agent P. C. Cummins and Bel-Toe Foundation Co. Case No. 23-CD-79. January 4, 1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, following a charge filed by Bel-Toe Founda- tion Co., hereinafter called the Employer, alleging that United Brotherhood of Carpenters and Joiners of America Union 526, AFL-CIO, hereinafter called Local 526 or Respondent, and its agent P. C. Cummins, had violated Section 8(b) (4) (i) and (ii) (D) of the Act. The charge alleges in substance, that the Respondent and its agent P. C. Cummins induced and encouraged employees to en- gage in a strike or refusal to work, and threatened, coerced, or restrained the Employer with an object of forcing or requiring the Employer to assign particular work to employees represented by Respondent rather than to employees represented by Local 450, International Union of Portable and Hoisting Engineers, AFL- CIO, herein called Operating Engineers, Local 450, and by Local 116, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, herein called Laborers, Local 116. Thereafter, a hearing was held before Hearing Officer Evert P. Rhea on July 14 and 15, 1964. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. The briefs filed by the Respondent and the Employer have been duly considered. Pursuant to Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chair- man McCulloch and Members Fanning and Brown]. 150 NLRB No. 70.