Offset Workers, Union No. 39

OFFSET WORKERS, UNION NO. 39 Offset Workers, Printing Pressmen & Assistants' Union No. 39 and The Craftsman Press, Inc. and Local #45-L, Lithographers and Photoengravers International Union. Case 19-CD-174 October 7, 1971 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by the Craftsman Press, Inc., hereinafter referred to as the Employer, alleging that Offset Workers, Printing Pressmen & Assistants' Union No. 39, hereinafter referred to as Local 39, had violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Timothy D. Nelson on May 19 and 20, 1971. Local 45-L, Lithographers and Photoengravers International Union, hereinafter referred to as Local 45, Local 39, and the Employer 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. Thereafter, Local 39, the Employer, and Local 45 filed briefs. 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 rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Craftsman Press, Inc., is a State of Washington corporation engaged in the business of commercial printing, with its principal office in Seattle, Washing- ton. During the past year, a representative period, its gross volume of business exceeded $500,000 and during the same period it purchased goods and materials directly from points outside Washington valued in excess of $50,000 and sold and shipped products valued in excess of $50,000 to customers outside Washington. We find that the Craftsman Press, Inc., is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED 577 The parties stipulated, and we find, that Local 39 and Local 45 are labor organizations within the meaning of the Act. III. THE DISPUTE A. Work in Dispute The dispute arises from the Employer's continued recognition of Local 39 as the representative of all the Web offset operators, regardless of the previous ownership of the presses they operate. B. Background and Facts of the Dispute The Employer in 1968 purchased the stock of Metropolitan Press, Inc., hereinafter known as Metro- politan; the plan was to completely consolidate the operations of the two companies; for tax purposes and to benefit from the good will and customer relationships of Metropolitan the consolidation oc- cured over a 2-year period with Metropolitan remain- ing a separate business entity until its dissolution as a corporation on December 31, 1970. The various labor organizations representing em- ployees of Metropolitan were advised of the sale of stock, the anticipated dates of the moving of the various departments and the consolidation of the companies. As each department was consolidated into the Employer's operation the employees were offered employment by the Employer; most accepted. The Web offset presses were moved from Metropoli- tan premises to the Employer for consolidation during the summer of 1970; there were 15 employees for the Web offsets at Metropolitan and they all accepted employment, joining the Employer's 16 Web offset operators. The Employer's Web offset operators, regardless of their previous employer, all work out of the same location, service the same accounts, work for the same wages and fringe benefits, and are under the same supervisors. The Employer and Metropolitan, through their membership in the Printing Industry of Seattle, a multiemployer bargaining association, hereinafter called PIS, had collective-bargaining contracts with Locals 45 and 39. Local 45 was recognized by Metropolitan and certified by the Board in Case 19-RC-1848 as the collective-bargaining representa- tive for all production workers including Web offset operators. Local 45 has also been recognized as the collective-bargaining representative of certain em- ployees of the Employer, but, by contract and Board certification its Web offset operators have been expressly excluded from Local 45's jurisdiction; Local 39 has been recognized by the Employer and certified 193 NLRB No. 86 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Board in Case 19-RC-2002 as the representa- tive of its Web offset press operators. The transition for most employees from Metropoli- tan to the Employer occurred smoothly since Local 45 represented most employees at both companies. As to the Web offset operators, there was a conflict. The Employer notified the new employees who formerly worked for Metropolitan that they must join Local 39 pursuant to its contract that required all Web offset operators to be members of Local 39. Local 45 objected and claims to be the representative of any employee who operates a Web offset press that was formerly owned by Metropolitan. Local 45 brought charges against Local 39 pursuant to the AFL-CIO internal disputes plan. On August 20, 1970, an award was made in favor of Local 45; however, the Employer refused to be bound contend- ing that it was not a party to the proceeding . Local 45 then invoked the arbitration provisions of its contract with the Employer; on December 30, 1970, Local 39 advised the Employer that if any Web offset work was assigned to a nonlocal 39-member Local 39 would strike and at approximately the same time filed a unit clarification petition in Case 19-UC-65 which was dismissed on January 11, 1971; review of the dismissal was denied on February 16, 1971. The award went to Local 45 but Local 39 continued the strike threat, contending that it was not bound. C. The Contentions of the Parties The Employer contends that the inclusion of the pressmen who operate the Web offset presses former- ly owned by Metropolitan in the existing contractual unit represented by Local 39 should not be altered. The Employer argues that the collective-bargaining contract with Local 39 grants that union exclusive right to represent all of its Web offset operators; to have two contracts in effect for the same employee, one for when he operates an offset continuously owned by the Employer and to have a second contract in effect for when he operates an offset press 5 feet away that happened to have been previously owned by Metropolitan is both inefficient and uneconomi- cal; and it is not bound by the arbitration resulting from the AFL-CIO internal disputes plan, since it was not a party to the proceedings. Local 39 contends that as the union certified by the Board and traditionally recognized by the Employer as the collective-bargaining representative of all its Web offset operators it should continue to represent them regardless of the prior ownership of the Web offset presses they may operate and that it is not bound by the arbitration between the Employer and Local 45, since it was not a party to the proceedings. Local 45 moved the Board to quash the notice of 10(k) hearing on the basis that the jurisdictional dispute has been determined by arbitration. Local 45 also contends that it should represent all Web offset press operators, regardless of whom they originally worked for, who operate Web offset presses previous- ly owned by Metropolitan . Local 45 argues that the Employer is the successor to Metropolitan and as such is bound to the latter's contract ; and has been awarded the unit twice , once by an arbitration proceeding resulting from the union 's contractual relationship with the employer and by an arbitration proceeding resulting from the AFL-CIO internal disputes plan. D. Applicability of the Statute Before the Board may proceed with a determination of the 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, Local 39 formally claimed the disputed work contemporaneously with strike threats. We find that Local 39 threatened to strike the Employer with the object of requiring the Employer to assign particular work to its members. Local 45 cites Plasterers Local 79 v. N.L.R.B. [Southern Construction Co.], 440 F.2d 174 (C.A.D.C., 1970) cert. granted 401 U.S. 907, in support of its contention that a voluntary adjustment of the dispute had been agreed upon . There the court held that an Employer was not a necessary party to the settlement of a jurisdictional dispute . The Board, however, has continued to adhere to its position that the employer controlling the work assignments and the rival unions or groups of employees involved are all "parties to such dispute," and all must approve and enter into a voluntary settlement procedure in order to preclude a hearing and determination pursuant to Section 10(k), Lathers Union Local 104 (The Blaine Petty Company). 186 NLRB No. 70. We therefore conclude that the arbitration resulting from the AFL-CIO internal disputes plan and the arbitration resulting from the contractual relationship between Local 45 and the Employer were not effective voluntary adjustments of the dispute, within the meaning of Section 10(k), since all of the parties did not participate in the proceed- ings, did not join in the submissions to the two arbitrators, and did not agree to be bound by the decisions. On the basis of the entire record, we find 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. Merits of the Dispute Section 10(k) of the Act requires the Board to make OFFSET WORKERS, UNION NO. 39 579 an affirmative award of disputed work after giving due consideration to various relevant factors. The Board has held that its determination in ajurisdiction- al dispute is an act of judgment based upon common- sense and experience, reached by balancing those factors involved in a particular case. 1. Collective-bargaining agreements At all times material herein the Employer and the now defunct Metropolitan both had collective-bar- gaining contracts, through their membership in PIS, with Local 39 and Local 45. Local 45's contract gives it jurisdiction over most of Metropolitan's employees, including Web offset operators; the same contract while giving Local 45 jurisdiction over most of the Employer's workers expressly excludes its Web offset operators. Local 39's contract gives itjurisdiction over all of the Employer's Web offset operators. We find no merit in Local 45's contention that the Employer is the successor to Metropolitan and as such is bound to the latter's contract. We therefore find that collective-bargaining contracts favor the continued recognition of Local 39 as the representa- tive for all the Employer's Web offset operators. 2. Board certifications Local 39 was certified in Case 19-RC-2002 as the exclusive bargaining representative of the Employer's offset operators; Local 45 was certified in Case 19-RC-1884 as the representative of certain employ- ees of both the Employer and Metropolitan, including Metropolitan's offset operators, but excluding the Employer's. We find that Board certifications favor the continued recognition of Local 39 as the repre- sentative of all the Employer's Web offset operators. 3. Company practice The Employer has assigned the work in dispute to its employees who are members of Local 39, which is the collective-bargaining representative of its Web offset operators. We find that company practice favors the continued assignment of the work to employees who are represented by Local 39. 4. Relative skills Based on the record before us we can only conclude that the skills required by the Employer are possessed equally by members of Local 39 and Local 45. 5. Area and industry practice Both unions represent a substantial number of Web offset operators in the Seattle area; while Local 45 represents a slightly higher number of operators, we find that the area and industry practice does not favor either union. 6. Economy and efficiency In the Employer's business it is often necessary for operators to switch presses; if they finish onejob, the next might require the use of a second press; if a job takes longer to complete than planned, the operators on the next work shift might unexpectedly be required to finish the job using the original press. If two contracts were in effect, one for Web offset presses once owned by Metropolitan and one for the Web offset presses continuously owned by the Employer; the Employer would have to compute different wages and fringe benefits and have different supervisors for the operators, since supervisors are union members, every time an operator changes presses, even if for only a 10-minute job. We find that economy and efficiency favor the continued recognition of Local 39 for all Web offset operators. Arbitration Awards Since the Employer has not agreed to be bound by the arbitration decision resulting from the AFL-CIO internal disputes plan and Local 39 has not agreed to be bound by arbitration resulting from the contractu- al relationship between the Employer and Local 45, their awards of the work involved in this proceeding are only one of the factors which we must consider in assigning the disputed work. The arbitration award resulting from the AFL-CIO internal disputes plan was made on August 25, 1970, and found that Local 45 should continue as the representative of the operators of the Web offset presses previously owned by Metropolitan on the basis that Local 45's contract with Metropolitan survived Metropolitan's purchase by the Employer. Local 45's contract specified that the contract is to remain in effect unless the sale or transfer is a bona fide sale or transfer in the normal course of business. On August 25, 1970, the arbitrator found that the contract survived because Metropolitan remained a separate corporation and business entity and the Employer's advertising retained the identity of Metro- politan by stating that the two companies, Craftsman and Metropolitan, shared the same printing facilities. However, since December 1970 when the Employer's 2-year consolidation period was completed Metropol- itan ceased to exist as a corporation or separate business entity and the Employer's advertising also reflected this change. We find that the Employer's purchase was a bona fide sale and transfer in the normal course of business and that Local 45's contract does not survive. The arbitration between Local 45 and PIS resulted 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in an award for Local 45, again based on its contract surviving Metropolitan's purchase. Even though the award was made on March 1, 1971, which was after the complete consolidation of the two companies, the arbitrator found that the sale and transfer of Metro- politan's plant was not a bona fide sale or transfer in the normal course of business; the arbitrator also refused to consider the Employer's economy and efficiency of operations in making his award. We do not agree with this award, we find that it was a bona fide sale and transfer in the normal course of business, and we do take the Employer's economy and efficiency of operations into consideration. CONCLUSIONS Based upon the entire record, and after full consideration of all relevant factors, we conclude that the work in dispute should be assigned to pressmen who are members of or represented by Local 39. We reach this conclusion by relying on the Employer's contracts and Board certifications recognizing Local 39 as representative for the Web offset operators, the fact that the assignment of the work in dispute is consistant with past practice, and the efficiency and economy of operations that will result from such assignment. In making this determination, we are awarding the disputed work to employees who are represented by Offset Workers, Printing Pressmen & Assistants' Union No. 39, but not to that union or to their members. The present determination is limited to the particular controversy which gave rise to this proceed- ing. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and on the basis of the foregoing findings and the entire record in this case, the National Labor Relations Board makes the following Determination of Dispute: Employees of The Craftsmen Press, Inc., who are members of or are represented by the Offset Workers, Printing Pressmen & Assistants' Union No. 39, are entitled to the assignment of the work of operating the offset presses originally owned and operated by Metropolitan Press, Inc., at the plant and premises of The Craftsmen Press, Inc.