Intl. Typographical Union, Local 49

1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Typographical Union, Local No. 49, AFL-CIO and The A. B. Hirschfeld Press, Inc. and Graphic Arts International Union, Local No. 276 Graphic Arts International Union , Local No. 276 and The A. B. Hirschfeld Press, Inc. and International Typographical Union, Local No. 49, AFL-CIO. Cases 27-CD-145 and 27-CD-148 April 10, 1973 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO place of business located at 685 Speer Boulevard, Denver, Colorado, where it engages in commercial printing. It regularly sells directly to customers located outside the State of Colorado goods valued in excess of $50,000 annually. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that ITU and GAIU are labor organizations within the meaning of Section 2(5) of the Act. This is a consolidated proceeding under Section 10(k) of the National Labor Relations Act, as amended, following the filing of charges by The A. B. Hirschfeld Press, Inc., herein called the Employer. The charge against International Typographical Union, Local No. 49, AFL-CIO, herein called ITU, alleges that ITU violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Company to assign certain work to employees represented by ITU rather than to employees represented by Graphic Arts International Union, Local No. 276, herein called GAIU. The charge against GAIU involves the same work dispute and alleges that GAIU engaged in like illegal conduct for the purpose of forcing the Company to continue the assignment of the work to employees represented by it instead of to employees represented by ITU. A duly scheduled hearing was held before Hearing Officer Merrill M. McLaughlin in Denver, Colorado, on November 21 and 22 and December 14, 1972.1 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. Thereafter, briefs were filed on behalf of the Employer, ITU, and GAIU. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated and the record shows that the Company is a Colorado corporation with its sole III. THE DISPUTE A. The Work in Dispute The disputed work involves the pasteup of the proofs produced by recently acquired phototypeset- ting equipment , a Fototronic 1200 and a V.G.C. Phototypositor. B. Background and Facts of the Dispute The Employer's only shop employs 280 persons. As a commercial printing shop, Employer processes a product beginning with markup through its compos- ing room, preparatory department and camera, press, bindery function, and on to completion. Hirschfeld's voluntary recognition of ITU in the mid-1950's led to a continuing contractual relationship covering com- posing room employees. The Cuthbertson Type Setting Company, a sepa- rately owned and operated firm, rents a room from Hirschfeld adjoining the latter's composing room. Cuthbertson's employees, all of whom are engaged in the typesetting function, are covered by the same ITU-multiemployer contract as Hirschfeld's compos- ing room employees. Cuthbertson uses five hot metal process Intertype machines. In this process the machine simply drops molten metal into forms, one line at a time. "Copy" from Employer's customers is sent. to Cuthbertson and, under contract with Employer, Cuthbertson does the typesetting. The type is then taken to Employer's composing room employees who are engaged in makeup, which involves physically arranging the type slugs in proper order and spacing. The composing room employees run a print, proof- read the galley, and make corrections. Thereafter, the type is ready either for final lockup and direct use on the letterpress or for further processing by making a, final reproduction proof ("repro" proof) on the proof Except as noted, all dates are 1972. INTL. TYPOGRAPHICAL UNION, LOCAL 49 1029 press. The composing room employees also operate the Employer's Ludlow machines , which, like Cuth- bertson's Intertype machines, use the hot metal method . The "repro" proofs are sent on to Hirsch- feld's Art Department employees. Since certification by the Board in April 1968, GAIU has been the exclusive bargaining representa- tive of the Employer's Art Department employees. GAIU represents these employees and the litho- graphic production employees under a single con- tract. The present contract expires June 30, 1974. The Art Department employees produce creative art and the mechanical paste-makeup. The latter involves cutting, properly placing, and pasting or gluing the components parts (i.e., their creative art, materials sent by customers and the "repro" proofs, and velox proofs received from the composing room) on the mechanical2 in order that a proof may be obtained by photographing the pasted-up form. In the spring of 1972 Cuthbertson purchased a Fototronic 1200 machine, and in the summer the Employer purchased a V.G.C. Phototypositor. These are keyboard actuated machines which produce a tape from which reading matter is printed on paper. These cold metal process machines perform the functions of composing and typesetting. They make a proof known as a velox print or proof which is used like a reproduction proof produced in the hot metal process. Both firms have nonetheless retained and made full-time use of their hot metal typesetting equipment, and employees represented by ITU continue to run them . Proofs whether produced by hot or cold metal process require pasting up if they are not camera ready , and most of the proofs require pasting up on the mechanical. By August 1972, Cuthbertson's Fototronic 1200 and Employer's V.G.C. Phototypositor were installed and put into preliminary use. The major job to be run on them at the time of the hearing was TV Guide, the Employer's customer . TV Guide would supply the tapes which activate the Phototronic machine which in turn produces velox proofs. These proofs are then put on a mechanical for processing as described above. Beginning about November 1971 through August 1972, the Employer discussed the assignment of the work in dispute with both the ITU and GAIU and each Union claimed the work. Employer held nine meetings with ITU to discuss the work in dispute. At the November 3, 1971, meeting Jack Boris, ITU's International representa- tive, stated that the product of the Phototronic machine would either have to be furnished by the z A mechanical is a heavy piece of index or tag stock. Although a complaint may not be based on these statements because of Sec. 10(b); they are noted as background to cast light on ITU's subsequent action. Cuthbertson Company to Hirschfeld Company ready for the camera, i.e., the paste-makeup having been done by Cuthbertson's composing room employees, or else the velox proof of the Phototronic machine furnished to Hirschfeld would have to be pasted up by Hirschfeld's composing room employees. Boris added that if this accommodation were not made the Company would be relieved of its contract with ITU, which the Employer understood to be a threatened work stoppage. At the meeting the next day, Boris told the Employer, without explanation, that if the ITU were not assigned the work Employer would no longer receive .the tapes from TV Guide.3 The last relevant meeting took place August 15, 1972. While Bill Austin, president of the ITU local, denied making any threats at this time, the Company's witnesses testified that Austin repeated Boris' state- ment of November 4, 1971, and further said ITU was attempting to negotiate a supplemental agreement with Cuthbertson concerning the Employer's TV Guide tapes and,, if these negotiations did not result in the paste-makeup function being performed by Cuthbertson's composing room employees, members of ITU, or by Hirschfeld's composing room employ- ees, ITU would not allow Cuthbertson to receive the outside tape. As the TV Guide work was the first of the printing to be done by the cold metal process through the new machines, if the tapes were not received, the Employer could not use the process and there would, be no work to assign. Also on August 15, 1972, the Employer wrote to the competing labor organizations informing them that it was assigning the work to the Art Department pasteup employees represented by GAIU. On August 23, 1972, ITU sought by court action to compel arbitration but the court dismissed the proceeding on the grounds that GAIU was not a party to the contract and that the Board had jurisdiction under Section 10(k) of the Act.4 On September 8, the secretary-treasurer of GAIU wrote the Employer: .. . we want to make sure that you keep in mind the very strong feeling of our union . . that paste-up work has regularly been done by members of our bargaining unit. . . . Any at- tempt to deprive them of that work would be in gross violation of their well estiblished [sic] rights. We do not, as you know, engage in the tactics of loose threats of strike or coercive action. . . . We do not know what your plans and inten- tions may be with respect to the coercion and pressure tactics of the ITU. We feel however that it is only fair to advise you that if the paste-up work for the camera, including the paste-up of material produuced [sic] by the phototypesetter 4 Civil Action No. C-4259, D.C. Colo., October 19, 1972. 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and headliner equipment, is not assigned accord-' ing to the requirements of our contract, our members may be expected to feel freed from any no-strike obligation of that contract and maybe [sic] expected to take appropriate action to protect their legitimate interests. We are sure that they would not like to engage in acts of economic coercion, but when faced with such threats by ITU, they will undoubtedly feel compelled to protect themselfs [sic]. It is undisputed and the parties stipulated they are not bound to the National Joint Board for the Settlement of Jurisdictional Disputes and there is no contract provision for the resolution of jurisdictional disputes which would bind all parties. C. The Contentions of the Parties The Employer's position is that its assignment of the work to the Art Department employees repre- sented by Respondent GAIU should not be changed because it conforms to its own area and industry practice and is based on efficiency, economy, probable loss of jobs by GAIU unit employees, and the comparative skills of the employees in the two units. GAIU claims that the work is traditional work for lithographic 'employees; that the assignment is supported by area, industry, and the Employer's past practice; and that Art Department employees pos- sess superior skills and the technical equipment necessary to accomplish the full range of tasks required by the work. ITU contends that it made no threats and the notice in Case 27-CD-145 should be quashed. On the merits, however, ITU argues that the work should be assigned to its unit because the new phototypesetting equipment replaced traditional hot type equipment, the pasteup work had been done to some extent by employees in its unit, area and industry practice favor assignment to employees represented by it, and there would be a loss of composing room jobs if the work is not assigned to that unit. 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 (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and (2) the parties have not agreed upon a method for the voluntary adjustment of the dispute. As described above, there is a conflict of testimony 5 International Association of Bridge, Structural and Ornamental Iron Workers, Local 348, AFL-CIO (Dick Tile and Marble Company, Inc.), 193 NLRB 769. 6 N. L.R. B. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System), 364 U.S. 573. concerning alleged threats by ITU. The Company stated that ITU threatened that Employer would not receive TV Guide tapes because of the performance of the disputed work by Art Department employees who are in the unit represented by GAIU, and ITU denies this. However, in a proceeding under Section 10(k), the Board is required only to find reasonable cause to believe that Section 8(b)(4)(D) has been violated and need not conclusively resolve conflicts in testimony.5 It is undisputed that GAIU threatened to cause a work stoppage with the object of requiring the Employer to continue the assignment of the work to employees represented by it instead of to employ- ees represented by ITU. We also conclude there exists no effective method for the voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act. Upon the entire record, we find that there is reasonable cause to believe that violations of Section 8(b)(4)(D) have occurred based on the conduct of both the ITU and GAIU 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 an affirmative award of disputed work after giving due consideration to various factors.6 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case.? The following facts are relevant in making the determination of the dispute before us. 1. The collective-bargaining agreements and Board certification The ITU's contract,8 article V, section 1 , defines the Union's jurisdiction and classifications as includ- ing, inter alia, "paste-makeup of all type" and prohibits the employer from making any "other agreement covering such work. . . ." Article V, section 2, provides that should an employer begin to use phototypesetting or paste-makeup, the resulting paste-makeup will be performed by employees covered . thereunder. However, this section also recognizes and permits continuation of certain "established practices" under which "paste-makeup work utilizing reproduction proofs was performed" by others, including certain "Employees in the art department of certain employers." In recent negotia- 7 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402. 8 Employer is a member of a multiemployer group which bargains and has a contract with ITU. As noted above, ITU was voluntarily recognized by this Employer in the mid-1950's. INTL. TYPOGRAPHICAL UNION, LOCAL 49 1031 tions with the Employer, the ITU unsuccessfully sought to delete the exception permitting continued assignment of paste-makeup work to other classifica- tions. GAIU's9 contract recognizes it as the exclusive representative • of "all lithographic production em- ployees," and its jurisdiction is defined as including "all work, processes and 'operations related to lithography, offset . . .." The appendix of the agreement includes a minimum wage rate for the specific, classification "paste-up." GAIU was cert- ified by the Board April 1968, for the unit of the Employer's six Art Department employees, of whom four perform only pasteup work, one does both pasteup and art work, and one does only art work. We find that this factor favors the position of neither Union as we are unable to conclude, upon examination of the pertinent provisions of their contracts, that either expressly covers the work in dispute. Nor does the mere fact of certification favor an award of the work to GAIU. 2. Company, area, and industry practice The Art Department employees of the Employer have regularly done all the pasteup work with the exception of a small portion thereof which has historically been performed by the composing room employees. The Employer assigned the work in dispute to the Art Department employees. Area practice shows that commercial printshops like Employer have assigned the work to their art departments. Composing room employees perform pasteup in those concerns which have very little of this work, or firms in a different branch of the printing industry, or establishments which do not have a separate art department or where the art department employees are in the unit with and represented by the same union representing compos- ing room employees. Accordingly, we find company, area, and industry practice favors the position taken by GAIU and the Employer. 3. Economy, efficiency of operations, skills, and possible job loss The record shows that it would be more time consuming to have pasteup done in two departments based on whether it came from the new machine or had historically been done by one unit or another. The physical facilities, equipment, and materials available to the Art Department employees make for efficient performance of the operation, as they have 9 This is likewise a multiemployer contract with a group of which Employer is a member. 10 We do not agree with the Employer's contention that the Board should issue a broad order proscribing coercive conduct by ITU against more space in which to work, better tools, and the materials necessary for the full range of the job. While the record shows that certain of the pasteup functions have been performed by composing room employees, and these are not in dispute, it is also clear that such pasteup does not require the same level of skill as is required by that done by the Art Department employees. To reach the level of skill possessed by the Art Department employees in performing pasteup work, composing room employ- ees would need time within which to train and this would be an expense to the Employer. According to the undisputed testimony of the Employer, if the work is not assigned to Art Department employees, certain of them will immediately lose their jobs. The ITU contends that, if in the future the Employer replaces its present hot metal equipment with cold metal equipment, composing room employees would lose jobs, as their work is primarily makeup. However, the Employer denied it has any plans to convert its operations within the next 5 years. Accordingly, the ITU's argument concerning job loss is based on speculation, and we can give it no weight. Thus, we find economy, efficiency of operations, skills, and probable job loss favor assignment to the Art Department employees. Conclusion Upon the entire record in this proceeding, and after full consideration of the relevant factors, particularly, employer, area, and industry practice; economy and efficiency of operation; skills; possible impact on jobs of Art Department employees; and the Employer's assignment and satisfaction with their performance, we conclude that the Art Depart- ment employees of the Employer who are represent- ed by Graphic Arts International Union, Local 276, AFL-CIO, are entitled to perform the work in question, and we shall award the disputed work to them. In making this determination, we .award the work to the employees of the Employer who are represented by Graphic Arts International Union, Local 276, AFL-CIO, but not to that Union or its members. Our present determination is limited to the particular controversy which gave rise to this proceeding.ro 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 Cuthbertson Company and others, inasmuch as the present case involves only the Employer, and it is speculative whether Cuthbertson will engage in pasteup work and, if it does, that ITU will claim such work. 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: 1. Employees of The A. B. Hirschfeld Press, Inc., at Denver, Colorado, who are currently represented by Graphic Arts International Union Local 276, AFL-CIO, are entitled to perform the paste-makeup of velox proofs produced by the phototypesetting equipment; i.e., Fototronic 1200 and the V.G.C. Phototypositor. 2. International Typographical Union, Local No. 49, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act to force or require The A. B. Hirschfeld Press, Inc., to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the. date of this Decision and Determination of Dispute, International Typo- graphical Union, Local No. 49, AFL-CIO, shall notify the Regional Director for Region 27, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work to employees represented by it rather than to employees currently represented by Graphic Arts International Union, Local 276, AFL-CIO.