Portland Typographical Union

258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Portland Typographical Union, Local 66 a/w Interna- tional Typographical Union, AFL-CIO and Guy Gannett Publishing Company and Portland News- paper Guild, Local 128 of the Newspaper Guild, AFL-CIO-CLC. Case 1-CD-347 February 27, 1974 DECISION AND DETERMINATION OF DISPUTE tive period, the Employer's gross volume of business exceeded $200,000. It advertises nationally sold products within its pages and subscribes to interstate news services. Accordingly, we find, as the parties have stipulated, 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 BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Guy Gannett Publishing Compa- ny, hereinafter called the Employer, alleging that Portland Typographical Union, Local 66 a/w Inter- national Typographical Union, AFL-CIO, herein called the Typographers, has violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by the Typographers rather than to employees represented by Portland Newspa- per Guild, Local 128 of the Newspaper Guild, AFL-CIO-CLC, herein called the Guild. Pursuant to notice, a hearing was held before Hearing Officer Richard D. Zaiger on October 15 and 16, 1973, in Portland, Maine. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to present evidence bearing on the issues. Thereafter, the Employer and the Guild 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 authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they,are- free from prejudicial error. The rulings are hereby affirmed.' The Board has considered the entire record in this case and hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER Guy Gannett Publishing Company is a Maine corporation engaged in the publication and printing of newspapers. During the past 12-month representa- I for the Guild moved at the hearing to strike the testimony of Robert Beith, the Employer's publisher, with respect to conversations he held with J . W Blatz, the Newspaper Guild's director of field operations, on grounds of hearsay Thereafter, the parties stipulated that , in lieu of continuing the hearing in order to call Mr. Blatz as a witness, the Guild would obtain his affidavit and that both the Employer and the Typogra- phers would waive cross-examination In view of this stipulation , we treat 209 NLRB No. 42 The parties stipulated, and we find, that the Typographers and the Guild are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute consists of all pasteup and related work which will be performed at the Employer's Portland, Maine, newspaper plant upon conversion from the-present hot-metal production method to a cold-type process.2 B. Background and Facts of the Dispute The Guild and the Typographers have represented separate units of certain of the Employer's employees for at least 20 years. Prior to the fall of 1973,3 the Employer utilized the hot-metal process in its printing operation. Under this system, metal plugs of type are arranged by printers, represented by the Typographers, into lines which are used to make impressions on celluloid mats. The mats, in turn, receive an injection of hot metal which is formed into a semicylindrical plate. It is from this plate that the actual newspaper page is printed. Pasteup work, the physical pasting together of pieces of paper for composition purposes, is required only for certain types of art work when the hot-metal process is utilized in printing. This work has been done exclusively by the Employer's artists, who are represented by the Guild, and involves approximately 5 percent of their working time. In June 1972, the Employer decided to convert from the hot-metal production process to cold type, a decision which had been under consideration since the 1950's. Upon conversion to the cold-type method, every newspaper page will be composed by physically pasting up material produced by a photocomposition machine. The page will then be the motion as moot and it is, therefore, denied 2 Although the Guild originally claimed all pasteup work to be done under the new process, at the hearing. and in its brief, the Guild indicated it was claiming only pasteup work in connection with advertising . However, as there was no agreement on the record to limit the "work in dispute," it remains as described above 7 All dates are in 1973 unless otherwise indicated PORTLAND TYPOGRAPHICAL UNION photographed, and the photograph used to make the plate for the printing press. The Employer's contract with the Typographers has, since 1956, contained a clause providing that in the event of the introduction of the cold-type process all pasteup work would be assigned to the Typogra- phers who, in turn, would provide the Employer with trained journeymen and apprentices. The contract between the Employer and the Guild does not identify the specific job functions within the Guild's jurisdiction, but does provide that the Guild's jurisdiction shall include all work similar in skill or function to that performed by Guild employees during the contract term. After having orally informed both Unions of its decision to convert to the cold-type process, the Employer on January 12 notified the Typographers by letter of its conversion timetable and reminded the Typographers of its contractual obligation to provide "partially trained journeymen and appren- tices" to perform the pasteup work. By letter dated February 12, the Employer informed the Guild of its assignment of all pasteup work to the Typographers. On March 12, the Guild submitted a written grievance to the Employer, alleging that by assigning all pasteup work to the Typographers the Employer was violating its contract with the Guild. The Employer on March 16 wrote to the Guild acknowl- edging the Guild's letter, but declining to follow the contractual grievance and arbitration procedure because an arbitration award under the Guild contract would not settle the matter as it would not be binding on the Typographers? Thereafter, on March 21, the Guild filed unfair labor practice charges with the Board, alleging that the Employer had violated Section 8(a)(1) and (5) of the Act by refusing to participate in a grievance meeting. The Employer, on March 28, filed charges alleging that the Guild had violated Section 8(b)(4)(D) of the Act by its conduct. Both the Guild's and the Employer's charges were dismissed by the Regional Director for Region 1 on July 27. In the interim, the Typographers had learned of the Guild's claim and, in a letter to the Employer dated April 25, stated in pertinent part: Please be advised that if any work assigned to Portland Typographical Union No. 66 is taken away from us we will consider this a violation of our contract and will take any economic action, including strike, which is legally open to us. On April 30, the Employer filed the instant charge 259 alleging that the Typographers, by the letter quoted above, violated Section 8(b)(4)(D). C. Contentions of the Parties The Guild contends that the charge herein should be dismissed and the notice of hearing quashed on the grounds that (I) no reasonable cause exists to believe that Section 8(b)(4)(D) has been violated, and (2) the dispute is not ripe for 10(k) adjudication because the Guild has not had the "opportunity to ascertain the Employer's position, to obtain informa- tion and, [sic] to come to some decision as to the merits of its grievance." As to the merits of the dispute, the Guild contends that, on the basis of its contract, and the Employer's past practice, all pasteup work involving advertising should be as- signed to the employees whom it represents. The Employer contends that the April 25 letter from the Typographers constituted coercion or the threat of coercion within the meaning of Section 8(b)(4)(D) and that an adjudication under Section 10(k) is necessary to resolve the dispute. With respect to the merits of the dispute, the Employer contends that (1) it is contractually obligated to assign the work to the Typographers, (2) the printers represent- ed by the Typographers possess the necessary measuring, sizing, and placement skills to do all pasteup work under the new process while the employees represented by the Guild do not, and (3) economic considerations with respect to the work- flow in the composing room require that all pasteup work be done by printers. D. Applicability of the Statute Before the Board may proceed to the determina- tion of a 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 methods for the voluntary adjustment of the dispute. As to (1), above, the record shows that, after learning that the Guild was claiming the disputed work, the Respondent, on April 25, wrote to the Employer stating that, if the work previously assigned to it were reassigned to the Guild, the Typographers would take "any economic action, including strike, legally open to us." The Guild contends that this statement does not constitute reasonable cause to believe that Section 8(b)(4)(D) has been violated, basing its argument on the Typographers use of the qualifying phrase "legally open to us," which, the Guild argues, demonstrates an explicit disinclination to take any unlawful action. I Neither the Typographers nor the Guild contract provides for tripartite arbitration 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to the Guild, since a strike is not a course of conduct legally open to the Typographers under Section 8(b)(4)(D), the statement is self-contradicto- ry and should not be construed "as a direct and unambiguous threat" to engage in conduct pros- cribed by that section of the Act. In support of its above contention, the Guild cites General Teamsters Local No. 162, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent (B. P. John Furniture Corporation), 144 NLRB 536. In that case, the only evidence of unlawful coercion was a vague statement by respondent's agent at a meeting with the employer about doing or learning something "the hard way" unless employees represented by the respondent were assigned the disputed work. The Board there said that in order to show reasonable cause that Section 8(b)(4)(D) had been violated "the evidence must relate to illegal conduct or speech of the Respondent or its representatives."5 The Board then found that "the hard way" phrase was too vague and insubstantial to support a finding of reasonable cause and therefore quashed the notice of hearing. The Guild also cited International Association of Machinists, AFL-CIO, (Carling Brewing Company, Inc. (Atlanta Plant)), 136 NLRB 1216, in which the Board found that respondent's statement that it would take whatever "action it deemed necessary" if the employer changed an existing work assignment did not warrant an inference that respondent intended to engage in unlawful conduct. We think the cases relied upon by the Guild are distinguishable from the instant case. In both cases, the respondent unions did not specify or even hint at the kind of action they intended to take and surely they did not indicate any intention to engage in a strike or in a refusal to perform services. The statements in these cases, because of their ambiguity, could not properly be characterized as threats to take unlawful action in support of a proscribed object. In the instant case, the Typographers, in threaten- ing "any economic action, including strike," make sufficiently clear that a strike was one of the means of pressure being contemplated and thus there can be no ambiguity of the nature referred to in the above- described precedents. The only issue, then, is whether the added qualification "which is legally open to us" is a sufficient reassurance to dispel the effect of the plainly stated threat to strike. We think that it is not. A lay reader of the Typographers letter would, we S General Teamsters Local No 162, supra at 544. 6 Printing Trades Specialty Local No 531, International Printing Pressmen and Assistants ' Union of North America AFL-CIO (George Banta Company, Inc), 201 NLRB 255. r The Guild's motion to defer the proceeding to arbitration was referred to the Board for ruling As noted supra, the record shows there is no provision for tripartite arbitration in the collective -oargaining agreements of think, hardly be reassured by the possibility that the Typographers could be expected to conclude that a strike was illegal, and that therefore it would not be engaged in. The suggestion is, indeed, quite the reverse-for why would there have been any refer- ence to a strike in the threatened action at all, if the Typographers had already concluded that a strike would be foreclosed by its known illegality? The reasonable inference, in our view, for the reader to draw was, instead, that the Typographers considered a strike to be in its arsenal of usable weapons, and that the reference to "legally open" was only a vague qualification, not providing the kind of assurances which would substantially qualify or nullify the plainly stated strike threat. Accordingly, we find that reasonable cause exists to believe that Section 8(b)(4)(D) of the Act has been violated.6 As to (2), above, it is clear from the record that there is no agreed-upon method for the voluntary adjustment of the dispute which is binding upon all of the parties.? Accordingly, we find that the dispute is properly before the Board for determination under Section 10(k) of the Act. 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 relevant factors, includ- ing the following: 1. Certification and collective-bargaining agreements The record does not indicate whether either the Guild or the Typographers has ever been certified by the Board as the representative of any of the Employer's employees. As discussed supra, the Employer's contract with the Typographers has, since 1956, provided that in the event the Employer converted its production method to the cold-type process all pasteup work would be assigned to printers represented by the Typographers. The contract between the Employer and the Guild,8 while not specifying precise jobs to be performed by Guild members, has provided for Guild jurisdiction over "[a]ny kind of work similar in skill, or performing similar function as the kind of work presently performed in [the] unit." This language clearly encompasses all pasteup work in either labor organization with the Employer Moreover, both the Employer and the Typographers indicated on the record their refusal voluntarily to arbitrate the dispute Since arbitration cannot resolve the instant dispute, the Guild's motion is hereby denied. 8 Although the Employer's collective-bargaining agreement with the Guild expired in 1972, at the time of the hearing the parties were honoring its provisions during negotiations for a new contract. PORTLAND TYPOGRAPHICAL UNION connection with advertising inasmuch as all such work was done prior to conversion by the artists represented by the Guild. It does not, however, encompass all of the pasteup work necessitated by the Employer's conversion to the cold-type method of production. Since the Employer's agreement with Typogra- phers specifically covers all of the pasteup work in dispute, while its contract with the Guild does not, we find that the contracts, while not determinative, favor award of the disputed work to employees represented by the Typographers. 2. Employer and area practice There is no employer practice with respect to pasteup work under the cold-type process since the conversion to the new system was not complete as of the date of the hearing. However, the small amount of pasteup in connection with advertising which was required under the hot-metal system was done by the two artists represented by the Guild. Nonetheless, it is undisputed that the volume and importance of pasteup work will vastly increase when the conver- sion to the cold-type process is complete as every page of the newspaper will be composed by this method. Therefore, while the factor of employer practice favors the Guild's claim, we accord it little weight in making our determination. As to area practice, an international representative of the Typographers testified without contradiction that there are more than 20 newspapers in the New England area which have converted to the cold-type process. All but one of these newspapers, Foster's Daily Democrat, have collective-bargaining agree- ments covering certain employees with either the International Typographical Union or one of its locals. Five of these newspapers also have contracts covering certain other employees with the Newspa- per Guild or one of its locals. At all but 2 of the 20 or more newspapers the pasteup work is performed by employees represented by the International Typo- graphical Union or one of its locals. The Guild presented evidence that at Foster's Daily Democrat all production and maintenance employees, mclud- ing those who perform pasteup, are represented by a local of the Newspaper Guild. The Guild also presented evidence that at the Boston Herald American pasteup is performed both by employees represented by the Newspaper Guild and employees represented by the International Typographical Union.9 261 Based on the foregoing, we find that area practice favors assignment of the disputed work to employees represented by the Typographers. 3. Skills, efficiency, and economy It is undisputed that the printers employed by the Employer have specialized skills required for news- paper composition, while the employees represented by the Guild do not. According to the uncontradicted testimony of two of the Employer's witnesses, only 50 percent of the worktime of the employees to whom the disputed work is ultimately assigned will be spent in doing pasteup. The Employer intends that for the remain- der of the time these employees will be engaged in the performance of other composing room duties. The Employer further envisions that there will be no need to hire additional employees to do pasteup since it already has a sufficient complement of printers who can perform other work in the compos- ing room and are being trained in the skills required for pasteup. However, if the work in dispute is assigned to the employees represented by the Guild, the Employer will have to hire 32-35 additional employees in order to have a sufficient complement to handle pasteup during peak periods. These same employees will then be idle the 50 percent of their time which is not spent in doing pasteup, since by contract they are not equipped or entitled to perform other composing room functions. Similarly, the printers represented by the Typographers, who in any case would continue to do other composing room work, will be without work while the pasteup is done by Guild employees. Furthermore, the Employ- er is obligated by its contracts with both labor organizations to effect reductions in the work force only by attrition, and so would have to add the new employees without terminating anyone presently employed. The Employer, therefore, contends that an assignment of the disputed work to the Guild would place the Employer under an intolerable economic burden. Under these circumstances, we find that these factors favor an award to the printers represented by the Typographers. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the Guy Gannett Publishing Company employees who are represented by the Typographers See Local 32. The Newspaper GuddAFL CIO-CLC (Boston Newspaper Division, The Hearst Corporation), 209 ?NLRB No 44, issued this day 262 DECISIONS OF NATIONAL are entitled to perform the work in dispute . We reach this conclusion upon the Employer's assignment of the disputed work to these employees ; the fact that the assignment is consistent with the current collec- tive-bargaining agreement between the Employer and the Typographers, and comports with area practice ; the fact that the employees represented by the Typographers possess the requisite skills to perform the work ; and the fact that such assignment will result in greater efficiency, economy, and continuity of operations . Accordingly, we shall determine the dispute before us by awarding the disputed work at the Employer 's publishing plant in Portland, Maine, to the Employer's employees represented by Typographers, but not to that Union or its members. LABOR RELATIONS BOARD 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 Dis- pute: Employees of Guy Gannett Publishing Company of Portland , Maine , who are represented by Portland Typographical Union, No. 66 a/w International Typographical Union, AFL-CIO, are entitled to perform all pasteup work at the Employer 's Portland, Maine, publishing plant upon conversion from the hot-metal production method to the cold-type process. r