Lithographers and Photoengravers Intl.

LITHOGRAPHERS AND PHOTOENGRAVERS INTL. 143 Lithographers and Photoengravers International Un- ion, AFL-CIO1 and National Press, Incorporated and Waukegan Typographical Union, No. 294, International Typographical Union, AFL-CIO? Case 13-CD-196 October 28, 1970 and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the LPIU and WTU are labor organizations within the meaning of the Act. DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by National Press, Incorporated (sometimes referred to herein as the Employer), on February 24, 1970, alleging that LPIU has violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the assignment of certain work described below to employees represented by LPIU rather than to employees represented by WTU. A hearing was held before Hearing Officer Leon C. Reivitz on May 12, 13, and 14, 1970. 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. WTU, LPIU, and the Employer filed briefs in support of their positions and they have been duly considered. 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. Upon the entire record in this case, the Board makes the following findings. 1. THE BUSINESS OF THE EMPLOYER National Press, Incorporated, is an Illinois corpora- tion with a plant located in North Chicago, Illinois, where it is engaged in the production of commercial and business printing, promotional specialities, and advertising catalogues. During the 12 months preced- ing the hearing, it had a gross volume of business in excess of $6 million and shipped goods valued at in excess of $100,000 directly in interstate commerce. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of the Act I Hereinafter referred to as LPIU. z Hereinafter WTU. WTU was permitted to intervene at the hearing without objection. 3 Employee Kleber, a member and former officer of WTU, testified that among the typographers (represented by WTU) he did virtually all of the III. THE DISPUTE A. Background and Facts of the Dispute The Employer is engaged in the production of commercial and business printing. Since 1932 it has recognized WTU as the collective-bargaining agent of certain of its employees who are engaged in the "hot- type" method of printing. WTU and the Employer have been parties to collective-bargaining contracts covering those employees since 1932, the most recent contract having been entered into in 1968 effective until 1971. In 1935, the Employer also recognized LPIU's predecessor, International Photoengravers Union of North America, as the bargaining agent of its offset department employees, and has maintained a contractual relationship with that union or LPIU since that time. The most recent LPIU contract, like WTU's, is effective from 1968 to 1971. The work of the employees represented by LPIU is described as "cold-type" printing. The work output of the Employer is basically divided into two parts. It prints a variety of items for customers, and this work is called production or job work. It also prints an extensive amount of material to advertise its own work to potential customers. The only issue herein is as to this advertising work, which the parties stipulated includes a specialty catalog, a general catalog, professional catalogs, a calendar catalog, brochures, fliers, and copy for publication in certain magazines. During the several years preceding early 1967, according to the testimony of Plant Manager Bielin- ski, about 75 percent of the advertising work was subcontracted out, 15 percent was performed by employees represented by WTU, and 10 percent by employees represented by LPIU.3 The subcontracting out of this work during this period was due to the Employer's inability to perform both its production work on schedule and its own advertising work. This inability to produce its own advertising work stemmed in part from the fact that Varityper machines utilized by lithographers represented by LPIU could not produce work of sufficient quality for advertising work during that period and that about 90 percent of the work in certain catalogs had been produced by him. However, as he admitted that much of this was work produced in previous years and reused in those catalogs, his testimony does not appear to contradict Bielinski 's estimate of the work breakdown. 186 NLRB No. 26 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD much of the advertising material and by the fact that, despite repeated efforts, the Employer was unable to hire additional typographers. In May 1967, the Employer purchased three IBM Selectric Composing machines4 to replace two Vari- typer machines and assigned the Varityper operators to run the IBM machines. The Varityper operators were members of the unit represented by LPIU. WTU inquired of the Employer as to the function of the new machines, claiming jurisdiction; it was informed that they were replacements for the Varitypers and did not press its claim. Within 60 days the Employer was satisfied that the IBM Selectric machines could perform all of its advertising work insofar as both quality and quantity of product were concerned, and it effectuated a change of operation whereby virtually all of such work, whether previously subcontracted out or produced within the plant, was performed by one full-time and one part-time Selectric machine, each manned by a former Varityper operator repre- sented by LPIU. During 1968, the Employer negotiated new con- tracts with both LPIU and WTU. The unit descrip- tion clause - of LPIU's contract was specifically amended to include Selectric Composing machine operators; WTU's new contract made no mention of that category. WTU contends that it first learned that the advertising work was being performed by lithogra- phers on the Selectric machines at the beginning of 1969.5 On August 17, 1969, WTU in a letter to the Employer claimed the advertising work then being performed by the Selectric machines, and the Em- ployer replied that the LPIU contract covered the work. In September 1969, WTU reasserted its claim to the work whether performed by its "hot-type" method or by the Selectrics, which are the "cold-type" method of operation. WTU continued to assert its claim to the work and demanded arbitration, claiming the Employer had an obligation to arbitrate under its collective-bargaining contract. The Employer maintained that its contract with LPIU provided that the work be performed by employees represented by LPIU. Although there is no contention that LPIU was bound to comply, WTU suggested that the Employer invite LPIU to the arbitration. On February 4, 1970, Bielinski wrote to LPIU: As you are aware, Waukegan Typographical Union # 294 is claiming certain work performed by our IBM Selectric Composing machines. The work claimed has and is being done by 4 Also referred to as Selectronic Composing machines 5 This contention is refuted, however, by Kleber's admission that he became aware that he was no longer getting advertising work to do in early 1967, by the testimony of Cretan, an employee and officer of WTU, that members of your Bargaining Unit. The Typo- graphical Union is now requesting arbitration. Will you please immediately advise us as to your position in this matter. And on February 10, 1970, LPIU responded by letter: Our Union, of course, cannot be bound by any arbitration award concerning this work which may be rendered in any proceeding between the Company and the Typographical Union. You are, further, hereby notified that in the event that the Company should assign this work for performance by employees outside the bargaining unit repre- sented by the LPIU, the Union will not hesitate to engage in such strike or other economic action as it may deem necessary to protect the interests of its membership. We sincerely trust that you will not be a party to any action which will make this necessary. On February 24, 1970, the Employer filed the instant charge alleging that LPIU threatened to strike if the work were removed from their jurisdiction, and that both LPIU and WTU claimed the work. B. The Work in Dispute At the hearing the parties stipulated that the work in dispute be defined as follows: Whether the advertising work in dispute should be performed by the employees represented by the Lithographers and Photoengravers International Union, AFL-CIO, or by employees represented by Waukegan Typographical Union , No. 294, International Typographical Union, AFL-CIO. That the above mentioned advertising work is defined to mean certain materials that appear in the Company's specialty catalogue, general cata- logue, calendar catalogue , medical and other professional catalogues , brochures, flyers, and any copy which is prepared for publication in certain magazines where National Press advertises. As the work thus defined is being performed on the IBM Selectric Composing machines , and as it is that operation which is in issue, we conclude that the work in dispute may be described more precisely as the operation of the IBM Selectric Composing machines in the performance of the Employer's own advertising work. C. The Contentions of the Parties The Employer contends that utilization of the Selectric machines, operated by lithographers, creates an integrated operation, which is more efficient and he was aware that advertising catalog work was being performed on Selectrics in 1968 , and by the fact that the 1967 catalogs, over 100,000 in number, were stacked in aisles around the plant , by the cutting machines, and within 75 feet of the typographers place of work. LITHOGRAPHERS AND PHOTOENGRAVERS INTL. 145 economical than if typographers were to be awarded the work; that the Selectrics replaced Varitypers which were operated by lithographers; and that award to typographers would result in layoff of lithogra- phers, production problems, and more overtime for typographers. LPIU contends that award of the disputed work to employees represented by it is consistent with a Board certification,6 its contract with the Employer, and the Employer's assignment. LPIU further asserts that lithographers operating the Selectric are more skilled by virtue of training and their 3 years of experience on the job; and that utilization of lithographers is more efficient and economical due to the close proximity of the machines to the offset department and the fact that the operation of the machines is an integral part of the "cold-type" method. LPIU also agrees with the Employer that there would be a need for additional overtime if typographers were awarded the work but no such need if lithographers perform it, and that assignment to lithographers has resulted in no diminution of work or work force among the typographers whereas award to typographers would result in the layoff of one lithographer. WTU's basic contention is that the Employer deceived it in surreptitiously reassigning the work in issue to the lithographers operating the Selectric machines and in not informing it of that action even through the 1968 contract negotiations. WTU further argues that LPIU's 1968 contract inclusion of Selectric operators and the skills of the operators acquired through training and 3 years of operation of the machine should not be considered since they are predicated on the Employer's alleged concealment.? Finally, WTU contends that employees represented by it possess the requisite skills to perform the work in dispute, that area practice favors an award to them, and that because the advertising work in issue was formerly performed by typographers the operation of the Selectric machine should be awarded to them. D. Applicability of the Statute Before the Board may proceed with a Determina- tion 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. In this case, as is more detailed above, the Employer assigned the disputed work to lithographers. Since about August 1969, WTU has contested that assign- 6 In 1960, International Photoengravers Union of North America, predecessor of LPIU, was certified by the Board as collective-bargaining representative of the Employer's offset platemaking department. The Varityper operators whose machines were replaced by the Selectrics were included in that department. During the hearing WTU filed a charge in Case 13-CA-9830 alleging that the Employer's conduct constituted a violation of Section 8(a)(5) of ment. When advised by the Employer of WTU's position, Lithographers promptly threatened to strike if the disputed work was assigned to anyone outside its unit. On the basis of the entire record, we find 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. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to all relevant factors. In International Association of Machinists, Lodge No. 1743 (J. A. Jones Construction Co.),8 the Board set forth in the following criteria to be considered in the making of an affirmative award in a 10(k) proceeding: The Board will consider all relevant factors in determining who is entitled to the work in dispute, e.g., the skills and work involved, certification by the Board, company and industry practice, agree- ments between unions and between employers and unions, awards of arbitrators, joint boards, and the AFL-CIO in the same or related, cases, the assignment made by the employer, and the efficient operation of the employer's business .9 1. Certification by the Board and arbitrators and other awards There are no relevant arbitration awards or deci- sions of the National Joint Board for the settlement of jurisdictional disputes. Although enjoying a contrac- tual relationship with the Employer since 1932, WTU has never been certified as the bargaining representa- tive of employees of the Employer. As noted above, LPIU's predecessor was certified in 1960 for a unit described as follows: All employees employed in what is now known and recognized as the offset platemaking depart- ment of National Press, Inc., engaged in the production of offset plates and who are engaged in all attendant work thereto and all parts of the process pertaining to the production of offset plates from the copy up to the finished product including paste-up and related preparation of copy, photographs and the handling and process- ing of all negatives and positives for reproductive purposes; retouching, including opaquing of negatives and positives; color separations and the Act. On June 17, 1970, the Regional Director for Region 13 refused to issue a complaint based on WTU's charge, and WTU appealed the Regional Director's action to the General Counsel. On August 19, 1970, the General Counsel denied WTU's appeal. The issues raised in WTU's charge are not before us here. 8 135 NLRB 1402. 9 Id. at 1410-11. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other purposes including dropout on plates or negatives ; stripping and layout and makeup work of all kinds to include the traditional setup, assembly and positioning necessary and required for the completion of process; printing; etching; the operation of electronic plate making. Since it is uncontested that the work in dispute was not performed, or at least in principal part was not performed, by lithographers, it is questionable wheth- er the disputed work was "known and recognized" as unit work before the advent of the Selectric machines. However, LPIU's certification clearly covers the offset department, and the Selectrics, both because of their physical proximity to the offset department and because of the fact they are part of the "cold-type" method, appear to be reasonably includable in that department like Varitypers they replaced. 2. Agreements between the Employer and the Unions WTU concedes that its contract does not refer to Selectric operators, on the other hand, article 3, section 2(c), of LPIU's current contract reads in pertinent part: The jurisdiction of the LPIU over the process of photoengraving as defined includes paste-up (artwork and customer's original copy) input- output IBM Selectric Composer and headlining However, inasmuch as WTU contends that its contract is silent on this coverage because it was unaware that the work was being performed until 1969, we shall not rely on this factor. 3. Skills and work involved We are not persuaded that the skills and training of either group are significantly greater than the other. It is, of course, clear that the lithographers operating the machines were trained to do so, and they have had 3 years of experience on the Selectrics . Although there is unrefuted evidence that none of the typographers have operated the Selectric machines, there is also evidence that they have operated similar machines with keyboards nearly identical. 4. Area and industry practice The evidence concerning area and industry practice is of little or no value in determining this dispute. LPIU offered area contracts into evidence concerning jurisdiction over Varityper machines , but not over Selectrics. WTU Local President Lynch testified that he knew of two Chicago area companies wherein typographers operate Selectric machines and another where they formerly did under agreements with these companies. However, Lynch did not know if these companies employed lithographers. 5. Efficiency and economy of operations There is ample evidence in the record to establish that the Employer's operation is more efficient and economical utilizing lithographers to operate the Selectric machines than it would be if typographers were awarded the work. The Employer has made repeated efforts over a period of years to hire additional typographers . Those efforts have been unsuccessful. Consequently, substantial overtime is worked by its employees in this category. In 1969, each typographer averaged 155 hours of overtime. If typographers were assigned to operate the Selectrics, additional overtime would of necessity be required. In contrast, the two Selectric operators assigned to advertising work averaged 31 hours of overtime in 1969. Furthermore, the Selectric machines have been installed in a room adjacent to the offset department on the site formerly occupied by the Varitypers. The Selectrics and certain functions performed in the offset department now represent an integrated proc- ess which produces a complete piece of advertising material. The composing room wherein the typogra- phers work is located about 100 yards away. If typographers were awarded the work, either they would have to work far separated from their depart- ment and other duties or the machines would have to be moved nearer the composing room and the advertising material would have to be transported back and forth between the Selectric machines and the offset department to assemble the final product. 6. Assignment made by the Employer and impact upon the employees An award in favor of employees represented by LPIU would of course be consistent with the Employer's assignment. That assignment has not had an adverse impact on the typographical unit in that no reduction in force was required and overtime is still extensive and common . If, however, an award were made to employees represented by WTU, it is the uncontradicted testimony of Bielinski that one lithog- rapher currently operating a Selectric would have to be laid off. CONCLUSION Based upon the entire record, and after full consideration of all the relevant factors, we conclude that the employees represented by LPIU are entitled to the work in dispute . Our present determination is limited to the particular dispute involved herein. In making this determination, we are assigning the LITHOGRAPHERS AND PHOTOENGRAVERS INTL. disputed work to employees who are represented by LPIU and not to the LPIU 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 case, 147 the National Labor Relations Board makes the following Determination of Dispute: Employees employed by National Press, Incorpo- rated, as lithographers and currently represented by Lithographers and Photoengravers International Un- ion, AFL-CIO, are entitled to operate the IBM Selectric Composing machines in the performance of the Employer's own advertising work.