Milwaukee Printing Pressmen Union No. 7

MILWAUKEE PRINTING PRESSMEN UNION NO. 7 1145 Milwaukee Printing Pressmen and Assistants' Union No. 7, In- ternational Printing Pressmen and Assistants Union of North America, AFL-CIO and Sells Printing Company and Milwau- kee Typographical Union No. 23, International Typographical Union, AFL-CIO, Party to the Dispute. Case 30-CD-5. June 23, 1966 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10 (k) of the National Labor Relations Act, as amended, following a charge filed by the Sells Printing Company, herein called the Employer, alleging that Mil- waukee Printing Pressmen and Assistants' Union No. 7, Inter- national Printing Pressmen and Assistants Union of North Amer- ica, AFL-CIO, herein called Pressmen, had violated Section 8(b) (4) (D) of the Act. Pursuant to notice, a hearing was held at Milwaukee, Wisconsin, on November 18 and December 8 and 9, 1965, before Hearing Officer Richard Perry. The Employer, the Pressmen, and the Milwaukee Typographical Union, AFL-CIO, herein called MTU, appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Thereafter, all parties filed briefs before the Board. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. Upon the entire record in this case, the Board makes the follow- ing findings : I. THE BUSINESS OF THE EMPLOYER The parties stipulated that the Employer is a Wisconsin cor- poration engaged in the operation of a commercial printing plant at West Allis, Wisconsin. Sells Printing Company annually has gross sales of approximately $500,000 of which sales of services to firms engaged in interstate commerce are valued in excess of $100,000. Sells Printing Company annually purchases goods such as paper and other materials valued in excess of $50,000 from firms which receive such goods directly from points outside the State of Wis- consin. We find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 159 NLRB No. 96. 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Pressmen and the MTU are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The work in issue; background facts Prior to 1961 the Employer's operation consisted of three main departments-the composing room, the pressroom, and the bindery. The composing room employees were represented by the MTU and the pressroom employees by the Pressmen. The majority of the platemaking work necessary for the Employer's offset operation was contracted out. During this period, however, the Employer did remake worn or broken plates in its own shop, utilizing press operators. In July 1961, the Employer established an offset preparatory department in its plant and began making its own offset plates. This department is located in the basement of the plant and is phys- ically separated from the rest of the Employer's operation. At the time the department was established, the Employer hired one man to do the entire offset preparatory (or general platemaking) proc- ess which includes camera work, table and bench work, and the actual plate burning. A second employee was hired for the depart- ment in 1962 and, at the time of the hearing herein, a total of three people were employed there. The employees in this department joined the MTU subsequent to their dates of hire. In the summer of 1964 or January 1965,1 representatives of the MTU and the Pressmen met with the president of the,Employer to discuss their jurisdictional claims to the work in the offset pre- paratory department. At the meeting the Unions agreed that two of the employees in the department would be represented by the MTU and the remaining employee by the Pressmen. The division was arbitrarily made on a numerical basis, rather than by functions or names of the employees. This agreement was observed until March 1965. From March through May, the Pressmen and then the MTU attempted to have all three employees in the department join their respective organizations. Although all three employees signed application cards for the Pressmen early in 1965, since May 1965 they have belonged to the MTU. On June 21, 1965, the Pressmen sent a letter to the Employer stating that there was a dispute between the Employer and the "The record reflects a conflict in dates , a resolution of which is immaterial to the issues herein. MILWAUKEE PRINTING PRESSMEN UNION NO. 7 1147 Pressmen concerning employees engaged in "general plate making." Although the parties initially agreed to submit the dispute to tri- lateral arbitration, on August 16 the Pressmen informed the parties that its International Union had refused to permit participation by the local in the agreed-upon arbitration. In a letter dated the same day the Pressmen wrote the Employer asserting that it had con- tractual jurisdiction over the employees performing the general platemaking, and the Employer was violating the contract by rec- ognizing the MTU. The letter further stated that unless the Employer ceased the asserted illegal action the Pressmen would ``commence economic sanctions to enforce both the contract- juris- diction of this Union, and the rights attendant such contract jurisdiction." The Employer filed a charge alleging a violation of Section 8(b) (4) (D) on August 27. Subsequent to the notice of hearing, the Pressmen filed an action in Federal District Court for the Eastern District of Wisconsin under Section 301 of the Act, to compel either bilateral or trilateral arbitration of the dispute. The record herein does not disclose the present status of such suit. B. Contentions of the parties Pressmen : The Pressmen contends that the matter is a represen- tation problem between two unions and, as such, is not a jurisdic- tional dispute within the meaning of Sections 8(b) (4) (D) and 10(k) of the Act. It also contends that the letter to the Employer dated August 16, 1965, does not constitute a threat within the mean- ing of Section 8(b) (4) (D). The Pressmen further contends that the arbitration clause in its contract with the Employer is an agreed-upon method for the voluntary adjustment of the dispute and the Board should defer action pending the court action on arbitration. The Pressmen argues, alternatively, that if the Board finds that a jurisdictional dispute exists, the work should be awarded to the employees represented by the Pressmen on the following bases : the jurisdictional clause of its contract with the Employer; the custom and practices in the area; and the fact that Pressmen had performed some platemaking work for the Employer prior to the establishment of the offset preparatory department in July 1961. Milwaukee Typographical Union : The MTU contends that the letter to the Employer, dated August 16, 1965, containing a threat of "economic sanctions" is sufficient to establish reasonable cause to believe that Section 8(b) (4) (D)- has been violated. The MTU fur- ther argues that- the Employer's assignment to its- members should 1 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be upheld on the basis of employer assignment, efficiency of the operation, and the jurisdictional coverage of its contract with the Employer. Employer : Like the MTU, the Employer contends that the August 16, 1965, letter supports a finding that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated. The Employer further contends that its assignment of the work to the MTU should not be disturbed because it is consistent with long- standing company practice, the efficiency of the operation as cur- rently performed, and the relationship of the work to other offset operations performed by members of the MTU. C. Applicability of the statute Before the Board may proceed with a determination of the dis- pute pursuant to Section 10(k) of the Act, it must be established that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated. The record indicates that on August 16, 1965, the Pressmen sent a letter to the Employer threatening "economic sanctions to enforce ... the contract jurisdiction of this Union." We find the Pressmen's demand was for jurisdiction over the disputed work, not, as it con- tends, merely an attempt to represent the three employees currently working in the offset preparatory department. On the basis of the entire record, there is reasonable cause to believe that the Pressmen's letter to the Employer was an attempt to threaten, coerce, or restrain the Employer in violation of Section 8(b) (4) (D).2 We find, therefore, that the dispute is properly before the Board for determination under Section 10(k) of the Act.3 D. The merits of the dispute Section 10 (k) of the Act requires that the Board make an affirma- tive award of disputed work after giving due consideration to the various relevant factors. As the Board has stated, its determination in a jurisdictional dispute case is an act of judgment based upon commonsense and experience and a balancing of such factors.' 2 The threat of economic sanctions was clearly an attempt by the Pressmen to force the Employer to assign the disputed work to its members rather than to members of the MTU. 3 According to the record, the arbitration proceedings which the Pressmen contends con- stitute an agreed-upon method for settlement of the dispute have not been agreed to by the MTU. Furthermore , no arbitration proceedings have been commenced and an arbitra- tor's award is not imminent In such circumstances , we see no occasion to defer to the "possibility" of future arbitration 4 N L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212 (Columbia Broadcasting System ), 364 U.S. 573; International Association of Machinists, Lodge No. 1743 ( J. A Jones Construction Company ), 135 NLRB 1402, 1411. MILWAUKEE PRINTING PRESSMEN UNION NO. 7 1149 1. Collective-bargaining agreements The contract between the MTU and the Employer, effective Janu- ary 1, 1963, to December 31, 1965, covers composing room work, including, inter alia, offset preparatory work "up to the making of the offset plate." The Pressmen's contact, effective March 1, 1964, to February 28, 1967, covers employees in "platemaking and related lithographic departments performing operations for the Employer whose rates of pay are listed in Section 20." Section 20 includes wage scales for "Platemaker-deep etch" and "Platemaker-surface." The Press- men's contract further contains a clause limiting the coverage of its jurisdictional clause to exclude any employees performing work which, on March 1, 1964, was covered by a contract between the Employer and another union. Both contracts may be interpreted as encompassing jurisdiction over certain parts of the disputed work. However, we are unable to conclude that either contract expressly covers the work of the entire department. The evidence indicates that the department is an integrated operation with one employee performing both the camera work and bench and table work, and the other two employees performing both bench and table work and the actual making of the plates. This interchange of functions among the employees in the department does not warrant a jurisdictional division of the work in dispute.5 2. Area practice The record is inconclusive with respect to the assignment of off- set preparatory work in other printing plants in the Milwaukee area. The evidence indicates that the area practices vary greatly depend- ing on the size of the shops involved, the general type of work product involved, and the nature of the union contract unit or units existing in each shop. Under the circumstances, we cannot say that the area practice preponderantly supports the claim of either of the competing Unions with respect to the disputed work. 3. Prior shop practice There is little similarity between the limited platemaking per- formed by the Pressmen prior to 1961 and the complete offset plate process including camera, table and bench work, and platemaking, 5 Cf. Carpenters District Council of Denver (J. 0. Veteto and Son), 146 NLRB 1242, in which the Board refused to divide work which was most efficiently performed in a single sequential operation. 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD here in dispute. We cannot consider the Pressmen's earlier perform- ance of some of the work as a determinative factor in assigning the work in dispute, particularly in light of the fact that employees represented by the MTU have performed the work for a 3-year pe- riod subsequent to July 1961. To a certain extent, therefore, prior practice lends some support to the MTU claim for the work. 4. Efficiency of the operations Prior to 1961, the Pressmen's performance of their limited plate- making duties necessitated press shutdown time while press opera- tors engaged in platemaking work. Under the current assignment of work to the MTU, the Employer has the benefit of constant man- power in the offset preparatory department without the inefficiency of idle presses. The Employer's assignment of the work to the MTU, unchallenged by the Pressmen for at least 3 years, indicates that economy and efficiency are being achieved in the operation as currently constituted. CONCLUSIONS Based upon the entire record and after full consideration of all relevant factors involved including the Employer's assignment, inte- grated nature of the disputed work, and the economical and efficient operation of the department under the current assignment, we find no compelling reasons to disturb the work assignment as made by the Employer. We shall determine the dispute before us by award- ing all offset preparatory work, including offset camera operation and all the steps and processes involved in offset platemaking, to those employees represented by the MTU, but not to that Union or its members. This determination is limited to the particular contro- versy giving rise to this dispute. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and upon the entire record in this proceeding, the Board makes the following Determi- nation of Dispute,' pursuant to Section 10(k) of the Act: 1. Employees currently, represented by the Milwaukee Typograph- ical Union No. 23, International Typographical Union, AFL-CIO, and employed by the Sells Printing Company in its offset prepara- tory department are entitled to perform all offset preparatory work, including offset camera operation and all of the steps and processes involved in offset platemaking,, at the Employer's plant in West Allis, Wisconsin. HECK'S, INC. 1151 2. Milwaukee Printing Pressmen and Assistants' Union No. 7, International Printing Pressmen and Assistants Union of North America, AFL-CIO, is not entitled to force or require the Sells Printing Company to assign the aforementioned offset preparatory work to employees represented by it. 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, Milwaukee Printing Pressmen and Assistants' Union No. 7, International Printing Pressmen and Assistants Union of North America, AFL-CIO, shall notify the Regional Director for Region 30, in writing, whether or not it will refrain from forc- ing or requiring the Sells Printing Company, by means proscribed by Section 8(b) (4) (D) of the Act, to assign the above-described work to employees represented by the Pressmen rather than those represented by the MTU. Heck's, Inc. and Food Store Employees Union , Local No. 347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 9-CA-3578. June X3,1966 DECISION AND ORDER On November 23, 1965, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled proceeding, finding that Respond- ent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that such allegations be dismissed. There- after, Respondent, the General Counsel, and the Charging Party each filed exceptions to the Trial Examiner's Decision, together with supporting briefs. Pursuant to Section 3(b) of the Act, the National Labor Rela- tions Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jen- kins and Zagoria]. 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 Trial Examiner's Decision, the exceptions, the briefs, and the entire 159 NLRB No. 104.