Local 32, The Newspaper Guild

LOCAL 32, THE NEWSPAPER GUILD Local 32, The Newspaper Guild, AFL-CIO-CLC and Boston Newspaper Division, The Hearst Corpora- tion and Boston Typographical Union No . 13. Case 1-CD-343 February 27, 1974 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Boston Newspaper Division, The Hearst Corporation, herein called the Employer, alleging that Local 32, The Newspaper Guild, AFL-CIO-CLC, herein called the Guild, has violat- ed Section 8(b)(4)(D) of the Act. Pursuant to notice, a hearing was held in Boston, Massachusetts, on July 16 and 17 and September 24 and 25, 1973, before Hearing Officer Richard D. Zaiger. 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, the Employer, the Guild, and the Boston Typographical Union No. 13, herein called the Typographers, filed briefs in support of their respective positions. 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 that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, including the briefs, the Board makes the following findings: 1. THE BUSINESS OF 1 HE EMPLOYER The parties stipulated and the record shows that the Employer is a Delaware corporation, engaged in the publication and printing of newspapers, with its principal place of business located at 959 Eighth Avenue, New York City, New York. The Employer publishes and prints a newspaper through its Boston Newspaper Division, which is located at 300 Harri- son Avenue. Boston, Massachusetts. The Employer's annual gross volume of business exceeds $200,000; and the Employer advertises, within its publications, nationally sold products and subscribes to interstate 1 All dates herein arc 1972, unless otherwise speufied. 2 The Employer was formerly located at its Winthrop Square plant, where it published the Record American 263 news services . Accordingly, we find that the Employ- er 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 Local 32, The Newspaper Guild, AFL-CIO-CLC, and the Boston Typographical Union No. 13, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute In June 1972,1 the Hearst Corporation moved its publishing operations to Harrison Avenue after purchasing the Boston Herald Traveler.2 As a result of the move, the Employer changed from a hot-metal to a cold-type process which uses photocomposition equipment. Compositors at the Harrison Avenue plant, where the Employer publishes the Boston Herald American, are represented by the Typogra- phers pursuant to a contract for the period January 1, 1972, to December 31, 1974. The Typographers also represents compositors at the Boston Globe, the city's only other daily newspaper. Artists at the Herald American are represented by the Guild under a contract for the period January 1, 1972, to December 31, 1974. At the Boston Globe, artists are represented by the Boston Globe Employees Associ- ation. Based upon past practices at the Harrison Avenue plant, the Employer awarded certain pasteup work relating to the production of advertisements to Herald American artists. In October and December meetings, union representatives of the Guild and Typographers orally ratified the award of work despite the dissatisfaction of some personnel in the composing room. In mid-February 1973, Malcom MacKinnon, president of the Typographers, told William P. Klouda, employee relations manager, that the compositors demanded jurisdiction of all the pasteup work. Klouda reaffirmed the earlier agree- ments, and one week later MacKinnon announced that the Typographers would move for arbitration. A notice of the pasteup work assignments (herein referred to as the Swartzell notice)3 was issued February 27 by A. H. Swartzell, general manager of the Herald American. Around March 14, Guild Secretary Robert Bruner told Klouda that if any work were given to compositors the Guild would e The Swartzell notice divided the pasteup work in accordance with the Employer's understanding of the parties' previous oral agreements. 209 NLRB No. 44 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike. This threat was confirmed in writing on March 20. On March 21, 1973, the Employer filed a charge alleging a jurisdictional dispute. B. The Work in Dispute The disputed work concerns the processing of advertisements at the Herald American. After the art department receives a rough layout from an advertis- er or ad solicitor, a photocopy is made for the artists' use. The original rough layout is sent to the composing room so any text can be set in type. Copies of illustrations, made by the photoengraving department, are sent to the art department or composition department, depending upon their use. When the artists have completed work on their photocopy, it is returned to the composing room. The original pasteup of the ad, or live mechanical, is stored in the composing room while a proof is sent for the advertiser to approve. Once the ad is run, it is returned to the art department as a "dead mechani- cal" for storage. We note that the Swartzell notice inadvertently left out "paste-up art which touches a border" which the Employer understood to be included in the work assigned to the artists. The disputed work is assigned as follows: The artists are to (1) remove tissues from color work and paste on the mechanical and do color breakup; (2) paste up type or art which is to be pasted onto color work done by the art department; (3) paste art on art; (4) paste up type which has to be outlined; (5) file dead mechanicals; (6) paste up type which has to be positioned in an unnatural manner, such as on a curve; and (7) paste up art which touches a border. The compositors are to (1) paste up any line or group of lines which floats (unattached to any border); (2) paste up art which floats; (3) paste up mechanical borders; (4) control all live pasteups; and (5) paste tissues over photostats for color work while the artists are working on mechanicals. C. The Contentions of the Parties The Typographers contends that the Board should dismiss the complaint because it has agreed to be bound by the arbitration procedure in the contract between the Guild and Employer if the Typogra- phers contract is also put forward. In the event the Board does not dismiss the complaint, the Typogra- phers contends the Board should award the work to employees represented by it. The Typographers relies on its contract with the Employer, the ability of compositors to handle the work more efficiently since only one department is involved, and the fact 4 International Association of Bridge, Structural and Ornamental Iron Workers, Local 348, AFL-CIO (Dick Tile and Marble Company, Inc), 193 that some composing room employees at the Herald Traveler did pasteup and compositors perform pasteup at the Boston Globe. The Employer contends that there is no provision for tripartite arbitration or other voluntary method of adjustment; therefore, the Board should assert jurisdiction and award the work to the employees represented by the Guild. The Employer urges the Board to uphold its preference because the work allocation results in efficient operations, the artists have special training and possess specific skills and judgments for the tasks, the assigned work conforms to past practice at the Herald Traveler, and an award of work to the Typographers would result in job loss for the artists. The Employer also relies on the agreements reached between the Guild and Typogra- phers in October and December which ratified the work assignments. The Guild contends that, because it has no grievance with the Employer, the arbitration proce- dure under its contract cannot be utilized. Therefore, the Guild argues, the Board should assert jurisdiction and uphold the Employer's award of work. D. Applicability of the Statute Before the Board may proceed with a 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 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 to (1), the record herein shows that on March 20, 1973, Guild Secretary Robert E. Bruner informed William P. Klouda, employee relations manager, that if any of the work assigned to the artists were to be transferred "out of the Guild's bargaining unit, either by voluntary act or pursuant to an arbitration award," the Guild would strike to regain such work. In view of this express threat by the Guild, we find that there is reasonable cause to believe that a violation of 8(b)(4)(D) has occurred.4 As to (2), we find that there is no agreed-upon method for voluntary adjustment of this dispute. The contract between the Typographers and the Employ- er provides that differences ansing under the contract shall be referred to the Local Joint Board for resolution if the representatives of the two parties cannot agree informally. There is no provision for tripartite arbitration. In addition, Typographers president, Malcom MacKinnon, stated to William Klouda that he refused to include the Guild in any arbitration proceeding he initiated under the Typog- raphers contract. NLRB 769,770 LOCAL 32, THE NEWSPAPER GUILD The Guild contract provides that where there is a jurisdictional dispute between the Guild and any other union the Guild will attempt to settle the conflict with the publisher and the other union. If no settlement can be reached informally, the Guild and the Employer are empowered to submit the entire dispute to arbitration in accordance with section 8 of the contract which provides for settlement of grievances "arising from the application and inter- pretation" of the Guild contract. Other unions may be invited to participate, but their refusal does not prevent the Guild and Employer from reaching a binding solution. The impact of the entire clause is that only when the Guild has a jurisdictional dispute with the Employer under its contract will it resort to arbitration. As Guild Secretary Robert Bruner indicated, the Guild agrees with the Employer's award of work and therefore has no grievance to activate the settlement machinery in its contract. Another impediment to arbitration under the Guild contract is that the Typographers has agreed to participate only if its contract is also put forward, a condition which is not provided for in the Guild's arbitration procedure. An agreed-upon method for the voluntary adjust- ment of a jurisdictional dispute was found not to exist in New York Mailers' Union No. 6, International Typographical Union, AFL-CIO (The New York Times Company)5 because, although each union's contract provided for arbitration, only the union and employer under contract were bound; there was no way to affect the second union. In addition, the Board did not find that there was a voluntary method of settling the dispute because the Mailers refused to submit to tripartite arbitration even though the Deliverers contract provided for it. In San Diego Stereotyper's Union No. 82, affiliated with the International Stereotypers and Electrotypers Union of North America (Union-Tribune Publishing Company),6 the Board was faced with a similar situation where "the arbitration provisions of their respective contracts do not provide an agreed-upon method for voluntary adjustment of the dispute which could culminate in a single determination binding on all parties." 7 The Board found that the unions were bound only by their respective contracts and therefore would not be affected by arbitration initiated under another union's contract. In Local 1184, Southern California District Council of Laborers (11. M. Robertson Pipeline Constructors)8 the Board reiterated that "the voluntary adjustment must bind 137 NLRB 665 6 201 NLRB 893 v Id at sec III, D. 8 192 NLRB 1078, 1079 9 Id at 1079 265 all disputing unions as well as the Employer in order to come within the meaning of voluntary settlement as set out in Section 10(k)." In that case, the fact that each union's contract provided for arbitration of disputes arising between the contracting parties did not "support the conclusion that all parties have agreed to be bound by a single tripartite arbitration proceeding, or to a means by which a final and binding adjustment could be reached."9 In the present case, as in the cases cited above, there is no single agreed-upon method to arbitrate the dispute which would involve the interpretation and applica- tion of both contracts. Accordingly, we find this matter is properly before the Board for determina- tion 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 the disputed work after giving due consideration to various factors.'° 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.' I The following factors are relevant in making the determination of the dispute before us. 1. The collective-bargaining agreements The Guild contract, agreed upon January 5, 1973, effective January 1, 1972, to December 31, 1974, covers employees in the advertising business circula- tion and building service departments, as well as helpers in the composing room. Section 14 of the Guild contract, which lists the salary for advertising makeup men, indirectly refers to pasteup work; otherwise, there is no specific reference to pasteup work in the contract. The Guild's jurisdiction is defined only as "work normally performed within ... the bargaining unit," but there is a provision preventing any decrease in the number of regular full-time artists due to the introduction of phototype- setting machines. The Typographers contract covers all composing room work. Section 9-04 provides that any pasteup work which was done outside the composing room will be performed by composing room personnel "when deemed practicable by the Publishers and proper equipment is installed ...." The exact nature of the pasteup work is not defined in the contract and the Employer has announced what it deems "practicable" in the Swartzell notice. We find that the collective-bargaining agreements do 10 NLRB v Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO I Columbia Broadcasting System ], 364 U.S 573 (1961) 11 International Association of Machinists, Lodge No 1743, AtL-CIO (J A Jones Construction Compare ), 135 NLRB 1402 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not favor either Union as we are unable to conclude, upon examination of- the pertinent provisions of the contracts, that either expressly covers the work in dispute. 2. Company and industry practice When the Employer moved to Harrison Avenue, it directed the head of the art department to assign pasteup work so it would be consistent with past practices at the Herald Traveler. At the Employer's former plant location at Winthrop Square, artists did pasteup work. Leslie Van Buskirk, an artist formerly employed at the Herald Traveler, testified that the Swartzell notice accurately reflected the division of work at the Herald Traveler. Although Lawrence F. Mardon, Typographers witness, testified that Herald Traveler compositors did pasteup, Mardon admitted that artists did some work in the Swartzell notice and that for the past few years the work allocation has been in a state of flux. We find that company practice favors the position taken by the Guild and the Employer. Because the Guild does not represent any employ- ees at the Boston Globe, its contract is not a consideration in assigning work at the Globe. Although Frank Kenney, color coordinator at the Globe and a Typographers witness, testified that the compositors do the mechanical pasteup, he reported that artists do art work such as drawing fancy borders. Kenny also indicated that a different pasteup process for color work is used at the Globe. Therefore, we conclude that area practice is not a reliable factor for the determination of work in this case. 3. Economy, efficiency of operations, skills, and possible job loss Both Arnold Black, art department head, and Robert Donahue, composing room superintendent, testified that the assignment of pasteup work to artists represented by the Guild is efficient and economical. Arnold Black reported that on the occasions where compositors did the artists' work the advertisements were poorly assembled and had to be redone. According to Black, even though the same technique is used in pasteup work by the compositors and artists, the artists possess the artistic judgment necessary to the production of a satisfactory adver- tisement. 12 In Portland Typographical Union, Local 66, a/w International Typo- graphical Union, AFL-CIO (Guy Gannett Publishing Co), 209 NLRB No. 42. issued this same day, certain pasteup work was awarded to the employees represented by the Typographers. In that case, a specific provision in the contract provided that if the Employer changed to photocomposition, If the work is given to the compositors, a number of artists would be jobless since 60-70 percent of the art department time is spent on pasteup work, and approximately half the artists are employed full time doing advertisement pasteup. With the present work assignment, no compositor would be dismissed. We find, therefore, that economy, efficiency of opera- tions, skills, and possible job loss favor assignment to employees represented by the Guild. Conclusions Upon the entire record ,in this case, and after full consideration of all relevant factors, particularly Employer practice, economy and efficiency of operations, possible impact on jobs of art department employees, and the Employer's assignment and satisfaction with their performance , we conclude that the art department employees of the Employer who are represented by the Guild are entitled to perform the work in question, and we shall award the disputed work to them. In making this determina- tion, we award the work to the employees of the Employer who are represented by Local 32, The Newspaper Guild, AFL-CIO-CLC, but not to that Union or its members. Our present determination is limited to the particular controversy which gave rise to this proceeding.12 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 the Boston Newspaper Division, The Hearst Corporation, who are represented by Local 32, The Newspaper Guild, AFL-CIO-CLC, are entitled to perform all work relating to the pasteup of advertisements at the Employer's Harrison Avenue plant as follows: (1) remove tissues from color work and paste on the mechanical, and do color breakup; (2) paste up type or art which is to be pasted onto color work done by the art department; (3) paste art on art; (4) paste up type which has to be outlined; (5) file dead mechanicals; (6) paste up type which has to be positioned in an unnatural manner, such as on a curve; and (7) paste up art which touches a border. employees represented by the Typographers would be awarded pasteup work In addition, only two artists , spending 5 percent of their time on pasteup, were involved. We find these factors distinguish Portland from the Decision herein