Lithographers and Photoengravers

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lithographers and Photoengravers International Union, Local No. 24-P and The Beacon Journal Publishing Company and Akron Typographical Union, Local 182, International Typographical Union, AFL-CIO. Case 8-CD-189 August 27, 1970 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by the Employer, The Beacon Journal Publishing Company, Akron, Ohio, alleging that Lithographers and Photoengravers International Union, Local No. 24-P,' had violated Section 8(b)(4)(D) of the Act. Pursuant to notice, a hearing was held on April 2 and 3, 1970, in Akron, Ohio, before Hearing Officer Arthur R. DePalma. All parties appeared at the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Hearing It I lLe; at the hearing, and finds that they are free from prejudical error. They are hereby affirmed. Briefs filed by the Beacon Journal Publishing Company, the Photoengravers, and Akron Typograph- ical Union, Local 182, International Typographical Union, AFL-CIO,' have been duly considered. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Beacon Journal Publishing Company is an Ohio corporation engaged in publishing a daily news- paper, the Akron Beacon Journal, and has an annual gross volume of business in excess of $1 million, of which over $200,000 is derived from advertising nationally sold products. The parties stipulated, and we find, that the Employer is engaged in commerce Hereinafter referred to as the Photoengravers Hereinafter referred to as the Typographers within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Lithog- raphers and Photoengravers International Union, Local No. 24-P, and the Akron Typographical Union, Local 182, International Typographical Union, AFL- CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The disputed work involves the assignment of the cutting of masks used for colored overlays (rubylith or amberlith) in the advertising department of the Beacon Journal Publishing Company in Akron, Ohio. The artists in the Employer's advertising department, who are not represented by any union, now perform the disputed work. B. Background The Employer, as heretofore indicated, is engaged in the printing, publication, and distribution of a daily newspaper at its plant in Akron, Ohio. The Employer publishes color in both advertising and editorial work, but, as noted above, the issue in this case is limited to the assignment of the work in the preparation of colored advertising. The advertising department of the Akron Beacon Journal consists of approximately 66 employees. The artists' section of the advertising department has eight artists and one supervisor. When an advertiser places an ad in the newspaper, he either submits to the advertising department of the Beacon Journal a pasted- up layout of the proposed advertisement, or discusses the ad with Beacon Journal artists, who make up a sketch of the proposed ad. If a pasted-up layout or sketch of the ad is submitted, it is sent to the composing room where a pasteup of the ad is made on lined paper. This pasteup is called a mechanical. A copy of the mechanical is made and sent to the advertising department artists. The artists then place the rubylith material over the ad and cut the colored part from the parts of the ad which are to be black and white. The remainder of the ad, which is to be in color, remains covered by the color part of the material. The pasteup of the ad, with the rubylith color overlays attached to it, is then returned to the composing room. There, the color overlays are 185 NLRB No. 45 LITHOGRAPHERS AND PHOTOENGRAVERS placed over the mechanical. The mechanical with the attached color overlays is then sent to the photoen- graving department, where a picture is taken of it in order to make the color plates used in producing the final product. Prior to October 1968, when the Employer switched from a "hot type" process of advertising copy to a "cold-type" process operation, the amount of color advertising was minimal, and the amount of work expended in making color overlays was less than 8 to 10 hours per month. Since the advent of the "cold-type" process operation, however, the artists spend between 35 to 40 hours per month making color overlays out of rubylith or amberlith material. In July 1969, an arbitration was held involving the Typographers and the Employer. The arbitrator's opinion and award, issued on October 2, 1969, award- ed the rubylith work to the Typographers. However, the Photoengravers was never notified of the arbitra- tion, and did not participate in it. In the fall of 1969, the Photoengravers raised the issue of the rubylith work, and advised the Employer that if it followed the arbitration award serious prob- lems would arise. By letter dated January 16, 1970, the Photoengravers demanded the rubylith work as work "traditionally performed" under its jurisdiction, and advised that any attempt to shift the work away from the Photoengravers would be resisted by "appropriate means, including a strike." C. The Contentions of the Parties The Photoengravers contends, inter aha, that it has primary jurisdiction over the disputed work because of the jurisdictional clause in its contract with the Employer, and, furthermore, that its members have the knowledge and skills to do rubylith work, as they are presently performing such work in the Employer's editorial art department. The Typogra- phers claims the disputed work on the basis of the jurisdictional clause in its contract with the Employer, adding that its members have the skills and knowledge to do the work, and citing the decision of the arbitrator who ruled that it is entitled to perform the disputed work. The Employer takes the position that the artists in its advertising art department should continue to perform the disputed work, relying on their experience and skills, the historic assignment of the work to these employees, and the efficiency of operation factor, which dictates that the work be performed by persons as near to the customer as possible. D. Applicability of the Statute 465 Before the Board may proceed 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. The charge herein alleges a violation of Section 8(b)(4)(D) of the Act. The record shows that on January 16, 1970, the Photoengravers warned the Employer that assignment of the disputed work to any other group of employees would be resisted by "appropriate means, including a strike." We conclude, under these circumstances, 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. E. The 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 ajurisdic- tional dispute is an act of judgment based on common- sense and experience, reached by balancing those factors involved in a particular case.' The following facts are relevant in making a deter- mination of the dispute before us. 1. Collective-bargaining contracts Article III, section 2, of the contract between the Employer and the Photoengravers, which is effective from December 1, 1969, to November 20, 1972, like the predecessor contract which extended from Decem- ber 1, 1966, to November 30, 1969, gives the Photoen- gravers jurisdiction over the process of photoengraving at the Employer's plant, including, inter alia, the "making of masks for color separations." Article I, section 3, of the contract between the Employer and the Typographers, which is effective from October 1, 1967, to September 30, 1970, gives the Typographers jurisdiction over all composing room work, including "Paste makeup for the camera," which, it is stated, "must be completed and ready for the plate making camera before being sent to any other department." As heretofore indicated, the artists in the Employer's advertising art department, who are assigned the dis- puted work, are not represented by any union, and hence, have no contract with the Employer. Under the foregoing circumstances, the Photoengravers and the Typographers appear to have some colorable right ' International Association of Machinists, Lodge No 1743 (JA Jones Construction Company), 135 NLRB 1402 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the disputed work, and may, arguably, claim entitle- ment to the disputed work under their contracts 2. Area, craft, and industry practice Since about 1947, the unrepresented artists in the Employer's advertising art department have been responsible for the production of color overlays for advertisements originating in the advertising depart- ment. On the other hand, employees in the photoen- graving department, who are members of the Photoen- gravers, have made color overlays for promotional advertising originating in the editorial art department. The record does not establish any definitive area, craft, or industry practice in respect to the assignment of the making of color separations by means of rubylith or amberlith overlays, although the testimony indicates that at three newspapers in widely scattered areas of the country, employees represented by the Typogra- phers have made the color overlays. 3. Skills, efficiency, and economy All the artists in the Employer's advertising depart- ment have had some experience in art work prior to being employed by the Employer, and have attended various commercial art schools, or have taken com- mercial art classes at Akron University or other local institutions. It further appears that their background is utilized mainly in the performance of their other tasks within the advertising department, as the cutting of the rubylith or amberlith overlays requires no great skill and no great degree of technical training. The record further indicates that employees who are members of the Photoengravers and the Typographers also have the skills to perform the work. The Employer however, maintains that the present work assignment to its artists in the advertising art department is required in the interest of efficiency and economy, in view of the necessity of having the work performed by persons as near to the customer as possible, and moreover, that the work performance of the artists has been, and continues to be, highly satisfactory. Conclusions as to the Merits of the Dispute On the basis of the foregoing considerations, it is clear that the relevant factors favor a continuation of the Employer's assignment of the disputed work to the artists in the advertising art department, who are unrepresented. We note, particularly, that the artists have satisfactorily performed the disputed work for over 20 years with the express or implied consent of the Photoengravers and the Typographers. We also note the skills, training, and experience of the artists in the advertising art department, and the efficiency and economy of the Employer's operation, which dictates that the artists be in close proximity to the Employer's customers and salesmen. We are not unmindful of the fact that the Photoengravers and the Typographers appear to have some colorable right to the disputed work under their respective contracts, but we note that the Board has repeatedly held that a contract asserted as a defense in a 10(k) proceeding must be clear and unambiguous.' Nor do we consider the decision of the arbitrator, referred to previously, as of controlling significance, for the reason, inter alia, that all interested parties herein did not appear in that proceeding. In all the circum- stances, we shall determine the dispute by assigning the work in question to the artists in the Employer's advertising art department, who are unrepresented. This determination is limited to the particular contro- versy giving rise to this dispute. 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 makes the following Determination of Dispute: 1. Artists, who are unrepresented, are entitled to perform the disputed work of cutting masks used for colored overlays (rubylith or amberlith) in the advertising art department of the Beacon Journal Publishing Company, Akron, Ohio. 2. Lithographers and Photoengravers Internationl Union, Local No. 24-P, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Beacon Journal Publishing Company to assign the work in dispute to employees represented by the aforesaid Union. 3. Within 10 days from the date of this Decision and Determination of Dispute, Lithographers and Photoengravers International Union, Local No. 24- P, shall notify the Regional Director for Region 8, in writing, whether or not it will refrain from forcing or requiring The Beacon Journal Publishing Company, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by the aforesaid Union, rather than to employees of the Beacon Journal Publishing Company, who are unrepresented. ' See, e g , Local 1291, International Longshoremen's Association (Northern Metal Company), 137 NLRB 1451, and cases cited therein