N.Y. Lithographers Union Number One-P

606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New York Lithographers & Photo-Engravers' Union Number One-P, Photo-Engravers International Union, AFL-CIO' and Sterling-Regal Engraving Co., Inc. and Local 1, Amalgamated Lithog- raphers of America, International Typographical Union, AFL-C10.2 Case 2-CD-361 February 1, 1968 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing a charge filed on October 11, 1967, by Sterling-Regal Engraving Co., Inc., herein called the Employer or the Company, alleging that New York Lithographers & Photo-Engravers' Union Number One-P, Photo-Engravers International Union, AFL-CIO, herein called Photoengravers, or Respondent, had violated Section 8(b)(4)(ii)(D) of the Act. Pursuant to notice, a hearing was held before Hearing Officer Jacques Schurre on November 13 and 14, 1967. 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 Employer, the Respondent, and Local 1, Amalga- mated Lithographers of America, International Typographical Union, AFL-CIO, herein called Lithographers, have filed briefs herein, which have been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this case, including the briefs, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer is engaged in New York City in the production of photoengravings and mats, plates for offset and letterpress printing, and in stereotyp- ' The name of the Respondent appears as amended at the hearing. 8 The name of the Lithographers appears as amended at the hearing. 3 The lithographic department is operated under the name of Town Off- set Plate Service, a Division of Sterling-Regal Engraving Co., Inc Town Offset, originally an independent company operating at another location, was purchased by the Employer about 2 years ago, and its entire operation was transferred to its present location. Completely owned, controlled, and managed by the Employer, it is operated as a division for accounting pur- poses only. ing. Its gross annual business exceeds $4 million, and during the past year it shipped goods valued in excess of $50,000 to customers outside the State of New York. We find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert ju- risdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that Photoen- gravers and Lithographers are both labor organiza- tions within the meaning of the Act. III. THE DISPUTE The dispute herein arises out of the Employer's purchase of two RCA electronic color scanners and its assigning the operation of one of them to em- ployees represented by Lithographers. The Employer occupies space in a building at 304 East 45th Street. Its photoengraving (letterpress) department is located on the sixth floor, where the production employees are represented by Lithogra- phers.-3 Each department has been using the tradi- tional method for making plates, beginning with the camera, for letterpress or offset color printing as the case may be. In the latter part of March or early April 1967, the Employer purchased an RCA electronic color scanner which was installed on the eighth floor of its premises. The scanner is designed to replace the conventional camera method of color separation. A transparency is mounted on a revolving cylinder, and by means of pushbutton controls and the ad- justment and setting of certain dials, the desired color separations are made electronically. The negatives, or positives, produced, depending on how the dials are adjusted, can be used for making plates for offset, letterpress, or gravure printing. On April 21 the Employer notified Photoengravers that it had installed the RCA scanner in the photoen- graving department, following which Van Cott, the Union's president,4 met with Tashjian, the Com- pany's president. They discussed the operation of the scanner and reached an agreement thereon. The Respondent accepted the Employer's assignment of the operation of the RCA scanner to employee Baumler,5 and it was agreed, inter alia, that the products of the scanner could be used on an in-plant basis only, it being understood that the term "in- plant" included the Employer's offset division. 4 Van Cott is also International counsel for the Atlantic Region of Photo-Engravers International Union. 5 At the time of the assignment, Baumler, an experienced and skilled photographer, was employed in the photoengraving department. He had taken a 5-week course in the operation of the RCA scanner. Later, Baumler was elevated to a managerial position and he was replaced at the scanner by another photographer in the photoengraving department. 169 NLRB No. 92 N.Y. LITHOGRAPHERS UNION NUMBER ONE-P " 607 In the latter part of September, the Employer purchased a second RCA scanner, intended for use in the production of offset plates, and installed it on the eighth floor near the first scanner. Employee Franza, a photographer in the offset division, who had in the meantime taken a 3 weeks' instruction course, was assigned to operate it. Within the next day or two, Van Cott called on Tashjian and made known his objection to the scanner in the photoen- graving department with a member of Lithog- raphers assigned to operate it. He stated that if the Employer was going to give Lithographers jurisdic- tion over the scanner, it should be taken down to the sixth floor and there would be no problem; otherwise, because of its location on the eighth floor, Photoengravers had jurisdiction. Tashjian ex- plained that there was presently no room for the scanner on the sixth floor, that it was on the eighth floor temporarily, and that as soon as space became available on the sixth floor the scanner would be in- stalled there. Van Cott told Tashjian that he would fight him all the way and that he (Tashjian) would get his instructions in the mail. On this visit Van Cott also told employee Franza, in Tashjian's presence: "I give you 30 days to make up your mind. You either join our union or I won't allow you to operate this machine here. It's got to be taken out or our man has to operate the machine." On October 3, Respondent wrote the Employer charging that the Company was in violation of its collective-bargaining agreement with Photoen- gravers in that it had "installed equipment and adopted work processes designed to substitute work now being'performed by covered employees." After citing the sections of the agreement allegedly violated, the letter went on to say, "Failing to do so, we will be compelled to take any and all action available to us strictly to enforce the Contract." On October 5, Photoengravers addressed a "Special Emergency Notice" to its Chapel Committees and members which was posted on the bulletin board in the photoengraving department. In substance, as set forth in the notice, the Respondent advised the membership that in view of the Company's viola- tion of the collective-bargaining agreement by in- stalling "new equipment," it "will take every action, including economic action, as advised by council [sic}" against the Employer to insure that the terms of the contract are strictly enforced. The notice stated that at the regular meeting to be held on November 6, "it shall be a special order of business ... to approve a recommendation authorizing the payment of all expenses incurred and benefits paid in enforcing the work preservation provisions of our contract." Van Cott admitted that "economic ac- tion," referred to in the notice, included strike ac- tion. He was not asked to explain under what cir- cumstances the membership would be asked to ap- prove a recommendation authorizing the payment of "benefits." According to Tashjian, himself a member of Respondent organization, he, as well as the employees, interpreted the notice as a strike call. A. Contentions of the Parties Photoengravers claims that the evidence does not disclose that it threatened, coerced, or restrained the Employer to assign the disputed work to its members rather than members of Lithographers. As to the merits of the dispute, it claims that its mem- bers are entitled to the disputed work on the basis of its agreements with the Employer, past practice, custom in the industry, location of the machinery, and similarity of skills involved. Photoengravers concedes that it would not have jurisdiction if the scanner were moved to the sixth floor. Lithographers claims jurisdiction based on its contract with the Employer, the Employer's assign- ment of the work to it and satisfaction with the work performed, the relative impact upon employee job rights, traditional work jurisdiction, and skills required for the work. The Employer supports the claim of Lithog- raphers and in addition it argues that this claim is further supported by considerations of efficiency and economy, and the temporary nature of the present location of the offset scanner. B. Applicability of the Statute Before the Board proceeds with a determination of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. There can be little question on the record that the object of Respondent's claims was to have the work being done by a member of Lithographers assigned to a member of Respondent, the question being whether or not the Respondent resorted to threats, coercion, or restraint to achieve this object. On the basis of the statements made by Van Cott to Tashji- an and Franza at the Employer's premises in Sep- tember and on the basis of Photoengravers' letter of October 3 and the "Special Emergency Notice" of October 5, which, taken together, we interpret as a threat to strike to force the desired result,6 we are satisfied that there is reasonable cause to believe that a violation of Section 8(b)(4)(ii)(D) has oc- curred, and we find that the dispute is properly be- fore the Board for determination under Section 10(k)-of the Act. 6 Unlike the recently decided case of Lithographers and Photoen- gravers, International Union, Local 23P , AFL-CIO (Buyer's Guide, Inc., dlbla News Publishing Company), 167 NLRB 958, the threatened action here cannot reasonably be interpreted as limited to action under the grievance machinery provided under the contract 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant factors. The Board has held that its determination in a ju- risdictional dispute case is an act of judgment based upon commonsense and experience and a balancing of such factors.7 Certain of the usual factors considered by the Board in these cases, such as certifications, con- tracts, and industry and area practice, provide little basis for determining the instant dispute. Thus, no evidence was received as to any Board certification relative to the disputed work; the Employer's con- tracts with Photoengravers and Lithographers do not constitute a persuasive basis for an award, as they include conflicting assignments of the work in controversy, although we observe that the provi- sion relied on by Lithographers is more on point; the agreement between the Employer and Photoen- gravers with regard to the permissible "in-plant" use of the products of the photoengraving scanner, which includes the offset division, cannot be re- garded as an assignment of scanning work for offset processing to photoengravers, since the agreement, in and of itself, falls far short of showing an inten- tion to effect such a clear deviation from the prior plant practice of having the work intended for offset printing done by lithographers. As for the factors of area and industry practice, they are inconclusive since the evidence adduced shows merely that both Photoengravers and Lithographers, and their af- filiates, represent employees performing scanning for offset processes. 1. Impact upon employee job rights While there is no established prior plant practice for the operation of a scanner in the production of offset plates, it is clear that the whole offset process was, prior to the installation of the scanner, within the jurisdiction of Lithographers. It is also clear that an award of the work in dispute would cost mem- bers of Photoengravers no jobs, since the new process would augment their overall workload, whereas award of the disputed work to photoen- gravers may, conceivably, eventually eliminate some jobs of lithographers. Accordingly, we find that this factor supports the claim of Lithogra- phers. s 2. Skills required for the job The basic process of making color separations ' International Association of Machinists, Lodge No 1743, AFL-CIO Q.A. Jones Construction Company), 135 NLRB 1402, 1411. 8 The Denver Photo-Engravers Union No. 18 (Denver Publishing Company), 144 NLRB 1408,1412-13. with the scanner is the same whether they are ulti- mately used for lighographic (offset) or photoen- graving (letterpress) plates. However, the record shows that there is considerably more opportunity for color adjustment after the scanning stage in the photoengraving process than in lithography. For this reason the work done in the scanning stage is more critical in lithography, allowing a smaller mar- gin for error than is true for the equivalent stage of the photoengraving process, where substantial cor- rections can be made at subsequent stages. The scanner being an advance in the technology of the printing industry, photoengraving cameramen and lithography cameramen, even though experienced in the old process, require additional instruction in order to operate the scanner in place of the camera. Nevertheless, the record shows that with respect to the skills required to produce color separations for lithography plates by use of the scanner, the ex- perience gained in producing color separations for lithography plates by camera is more valuable, because of the degree of care required, than the ex- perience gained in producing them for photoengrav- ing plates by camera. We also note the Employer's satisfaction with the work performed by the litho- graphic cameraman assigned to the scanner. We find that Lithographers' claim that the lithographic cameraman exercises superior skill is supported by the record. 3. Economy and efficiency From the standpoint of economy and efficiency, there is obvious advantage to having the work in dispute performed by an employee possessing su- perior necessary skills, as found above. On the other hand, the Employer admits that the location of the scanner for lithographic production on the eighth floor, rather than the sixth floor, where the rest of the lithography department is located, is not economical. Photoengravers places great emphasis upon the matter of location, claiming that if the work is performed on the eighth floor it belongs to it regardless of whether it would have any claims to it were it located on the sixth floor. But nothing in the record supports a claim of jurisdiction based on location alone. Moreover, it is apparent that as long as the Employer has no room on the sixth floor for the scanner, placing it on a nearby floor is the most economical solution under the circumstances.9 Accordingly, we find that the factors of economy and efficiency favor Lithographers' claim to the work in dispute. ' Even if Photoengravers had some territorial claim to the work areas of the eighth floor, such claim would have to be weighed against the Em- ployer's legitimate interest in temporarily allocating certain space to an operation usually performed elsewhere while seeking permanent space for such operation. N.Y. LITHOGRAPHERS UNION NUMBER ONE-P 609 Conclusions Upon consideration of all pertinent factors ap- pearing in the entire record, we shall assign the work in dispute to the Employer's em- ployees represented by Lithographers. _ The Em- ployer's assignment of this work is consistent with its own past practices with regard to assignment of the function now accomplished by the operator of the scanner, and effects the least disturbance of em- ployees' job rights. The assignment is further sup- ported by the factors of skill and economy and effi- ciency. In making this determination, we are assign-; ing the disputed work to employees of the Em- ployer who are represented by Lithographers but not to that Union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following determination of the dispute: 1. Employees employed by Sterling-Regal En- graving Co., Inc., New York, New York, who are currently represented by Local 1, Amalgamated Lithographers of America , International Typo- graphical Union, AFL-CIO, are entitled to operate the RCA electronic color scanner used in the process of producing plates for the Employer's lithographic department. 2. New York Lithographers & Photo-En- gravers' Union Number One-P , Photo-Engravers International Union , AFL-CIO, is not, and has not been, entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Em- ployer to award the above work to its members or employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute , New York Lithog- raphers & Photo-Engravers' Union Number One-P , Photo-Engravers International Union, AFL-CIO, shall notify the Regional Director for Region 2 , in writing, whether it will or will not refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D ), to award the work in dispute to its members rather than to employees represented by Lithographers.