Chicago Web Printing Pressmen's Union 7

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chicago Web Printing Pressmen's Union No. 7, I.P.P. & A.U. and Metropolitan Printing Company and Field Enterprises, Inc., Newspaper Division and Chicago Typographical Union No. 16, I.T.U. Case 13-CD-228 February 28, 1974 DECISION AND ORDER QUASHING NOTICE OF HEARING This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed jointly by Metropolitan Printing Company (Metropolitan) and Field Enterprises, Inc., Newspaper Division (Field) on November 10, 1972,1 alleging that Chicago Web Printing Pressmen's Union No. 7, I.P.P. & A.U. (Pressmen),' had violated Section 8(b)(4)(D) of the Act. A hearing was held pursuant to notice at Chicago, Illinois, on January 10 and February 5, 6, and 8, 1973, before Hearing Officer Michael J. Rybicki. Field and Metropolitan; the Pressmen; and Chicago Typographical Union No. 16, I.T.U. (Typographers), 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. All parties have filed briefs with the Board. The rulings that 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: I. THE BUSINESS OF THE EMPLOYER Field Enterprises, Inc., is a Delaware corporation engaged at Chicago, Illinois, in the business of publishing newspapers, the printing business, and other aspects of communication. During the past calendar year, Field had an annual gross revenue in excess of $10 million. Metropolitan Printing Company, a Delaware cor- poration, all of whose stock is owned by Field Enterprises, Inc., is a separately run corporate entity, engaged at Elk Grove, Illinois, in the printing business. During the past calendar year, Metropoli- tan purchased goods and materials in the course and conduct of its business operations valued in excess of $250,000, which goods and materials were transport- ed directly to its facility at Elk Grove from outside the State of Illinois. Accordingly, we find that the Employer is engaged 1 All dates in 1972, unless otherwise indicated 2 Although the term of the latest agreement between Metropolitan and the Pressmen had expired during the relevant period, the parties were engaged in bargaining negotiations and had agreed to be bound by the in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Pressmen and the Typographers are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Newspaper Division of Field Enterprises, Inc., is a member of the Chicago Newspaper Publishers Association (CNPA) which has a current collective- bargaining agreement with the Typographers which covers all composing room employees employed by Field. The agreement, in addition to granting Typographers exclusive jurisdiction over all compos- ing room work and providing that Field "shall make no other contract covering said work," also sets out a binding procedure for settlement of any dispute over the interpretation or enforcement of the various provisions of the agreement through a grievance and arbitration machinery. Metropolitan has a collective-bargaining relation- ship with the Pressmen 2 recognizing its exclusive jurisdiction over production employees engaged in the various aspects of composition work preparatory to offset printing. Metropolitan is not a member if CNPA, nor does it have a collective-bargaining agreement with the Typographers. In June, negotiations began between Joe McA- dams, president of Metropolitan, and corporate officials of Field for the purchase of a publication to be prepared and printed by Metropolitan for insertion into the daily newspapers published by Field.3 In August the parties signed a contract for the production of Suburban Week which provided that Metropolitan would do all the printing and compos- ition as well as the editorial work on Suburban while Field would solicit all advertising. Also according to the contract, Metropolitan is to he paid a fixed rate based on the quantity of pages provided, while Field is to receive all revenues from the advertising appearing therein. On August 26, the Typographers became aware of the arrangement between Field and Metropolitan through an announcement in a Field newspaper. Subsequently, on August 30, after some communica- tion between the Typographers and both Field and terms of the previous agreement during negotiations R The newspaper division of Field Enterprises publishes the Chicago Sun-Times and the Chicago Daily News. 209 NLRB No. 53 CHICAGO WEB PRINTING PRESSMEN'S UNION 7 Metropolitan concerning this matter, Typographers acting president, Donovan, wrote a letter4 to the executive director of CNPA, taking the position that according to its contract with the Association the composition work for Suburban Week had to be performed by members of the Typographers em- ployed by Field. Field took the position that the Typographers claim raised no arbitrable issue under the contract and therefore refused to go to arbitration on the matter. The day after Donovan sent the grievance letter he was contacted by the Pressmen who, having learned of the grievance, threatened to picket both Field and Metropolitan if any move was made to take the work away from Metropolitan. In response to this and other threats, Metropolitan and Field together filed the charges herein against the Pressmen under Section 8(b)(4)(D) of the Act. B. The Work in Dispute The instant dispute involves the assignment of composition work in the production of a weekly publication called Suburban Week which is inserted in the daily editions of both newspapers published by Field. Field contracted with Metropolitan for the pro- duction of Suburban Week including all the compo- sition work, which Metropolitan assigned to its employees represented by the Pressmen according to its collective-bargaining agreement with that Union. Employees of Field represented by the Typographers claim all of this work pursuant to the collective- bargaining agreement between the Typographers and the CNPA, of which Field is a member. C. The Contentions of the Parties The Intervenor, Typographers, takes the position that there is no jurisdictional dispute in this case as contemplated in Section 8(b)(4)(D) and 10(k) of the Act. The real issue, it contends, involves a question of interpreting its contract with the CNPA concern- ing Field's right to subcontract the composition work for Suburban Week. It has therefore moved to dismiss and to quash the notice of hearing under Section 10(k) of the Act. The Employers contend that there is a dispute between the Pressmen and Typographers over the assignment of composition work for Suburban Week and that factors such as economy and efficiency of operation as well as the Employer's preference 4 The letter was sent pursuant to the gnevance and arbitration provisions in the contract between the CNPA and the Typographers and constitutes the initiation of a formal "issue" or grievance under the contract. 321 require a finding that the disputed work should be assigned to the members of the Pressmen. In essence, the Pressmen takes an identical position to the Employers. D. The Applicability of the Act Before the Board may proceed to a determination of dispute under 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. We are not satisfied that any such violation has occurred in this case. The evidence here is insufficient to establish a traditional jurisdictional dispute between two groups of employees. The Typographers has never claimed the right to any work properly in Metropolitan's shop, which it concedes is the exclusive jurisdiction of the Pressmen. On the contrary, Typographers has from the outset asserted that its dispute is with Field, as a member of the CNPA, over its interpretation of the subcontracting proscriptions in their agreement relative to composition work done on the various sections of the newspapers published by Field. Although Field, as well as the CNPA, has taken the position that there is no subcontracting involved in their "purchase" of Suburban Week from Metropoli- tan and therefore there exists no arbitrable issue under its contract, we note that Typographers has filed suit in District Court under their contract to compel arbitration and that the court and not the Board is the proper forum for determining the issue of contract interpretation. What is involved here is a transfer of work from one Employer at one location to another Employer at a different location, whether by subcontracting, as Typographers asserts, or by purchase and sale, as Field contends. All parties agree that if the work were properly transferred to Metropolitan's shop it should be performed by employees represented by Pressmen, and that if it is to be done in Field's shop it should be performed by employees represented by Typographers. Thus the dispute turns upon the transfer of alleged unit work from one Employer to another, rather than upon any assignment of work from one group of employees to another by either Employer. In this respect, the transfer of work here is unlike the usual subcontracting in the construction industry, where the selection of a subcontractor is equivalent to an assignment of work because the general contractor would not have performed the work himself and separate sites are not involved. Separate locations are involved here, and there are s Typographers has filed suit in District Court in Chicago to compel Field to go to arbitration 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no competing claims to the work at the same location. In short, the disagreement here stems from a claim to unit work and the allegedly improper transfer of it out of the unit, rather than from the competing claims on "jurisdictional" grounds of groups of employees to work which need never have been unit work. It is the separate locations here and the "unit work" nature of the claim which distinguishes this case from those relied on by our dissenting col- leagues. The standards for judging unit work, and the statutory limitations on action to assert claims to unit work, differ from the standards for determining jurisdictional disputes and from the action which may be taken to support or resolve such jurisdiction- al claims. To apply jurisdictional dispute principles to a unit work claim would distort the statute, cf. Local No. 447, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industiy of the United States and Canada, AFL-CIO (Malbaff Landscape Construction), 172 NLRB 128, and we shall therefore quash the notice of hearing. In addition, we note that although the record establishes certain threats made by the Pressmen over the possible reassignment of the composition work on Suburban Week, we find that this fact, of itself, is not determinative of the question as to whether or not a dispute exists under Section 8(b)(4)(D) and Section 10(k) of the Acts Further- more, our ruling in this case is in no way intended to pass upon the possible legality of the Pressmen's actions under any other section of the Act or otherwise. ORDER It is hereby ordered that the notice of hearing issued in this case be. and it hereby is, quashed. CHAIRMAN MILLER AND MEMBER KENNEDY, dissent- ing: We disagree with our colleagues' conclusion that the evidence herein is insufficient to establish a traditional jurisdictional dispute between two groups of employees cognizable under Section 10(k) of the Act. r, In Highway Truckdrners & Helpers, Local 107, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent (Safeway Stores, Incorporated), 134 NLRB 1320, the Board held that although the facts of a particular case "might he deemed to fall within the literal terms of the Section 8(b)(4)(D) proscription" (at 1322), that proscription was not designed to authorize the Board to arbitrate disputes between an employer and a umon See also International Longshoremen's and Warehousemen's Union Local 8 (Waterway Terminals Company), 185 NLRB 186. 188. We are of the opinion that the legal principle established in those cases is valid and remains applicable to the instant case, notwithstand- ing the attempt by the dissent to distinguish them In both of those cases, the fact that a work assignment was involved was determined to be incidental to the real dispute over whether the employer had somehow The facts show that Field began publication of Suburban Week, a new supplement to its daily newspapers. It contracted with Metropolitan to prepare and print the supplement. Pursuant to that agreement, Field assigned the printing and compo- sition work for Suburban Week to Metropolitan's employees represented by the Pressmen. Field did not consult with or give prior notice to the Typogra- phers, who represented Field's composing room employees. When the Typographers learned that Metropoli- tan's employees were doing the composing room work for Suburban Week, the Typographers wrote a letter, on August 26, 1972, to Field, as a member of the CNPA, declaring its "position" that Field's intention "to have the composing room work required to produce this new section of the newspa- pers performed by other than those employees recognized in the current contract in effect between the Union and the Association" was in violation of the contract's jurisdictional requirements that "all composing room work necessary to produce Subur- ban Week is to be performed by employees recogniz- ed by that contract." The Typographers, pursuant to the contract's grievance-arbitration procedure, re- quested discussion and requested the maintenance of the status quo, that is, "that all composing room work necessary to produce the several sections (of the newspapers), including Suburban Week, be performed by employees governed by the current contract . . . ." When Field took the position that the Typographers claim raised no arbitrable issue under the contract and therefore refused to go to arbitration, the Typographers filed suit in the United States District Court in Chicago to compel Field to go to arbitration. The Pressmen, upon learning of the Typographers attempts to force Field to arbitrate its assignment of the composing room work, threatened to picket Field and Metropolitan if Field participated in any arbitration proceedings or made any move to reassign the work away from Metropolitan. In our opinion, these facts establish that a jurisdictional dispute exists between the Typogra- phers and the Pressmen over the assignment of the composing room work for Suburban Week. The Pressmen's claim for the disputed composing room violated its agreement with the Union. It is true that in the above-cited cases the employer's action led to certain employees being discharged , which is not the situation here But the significant fact , here as in those cases , is that the employer's action went beyond merely assigning work to one group of employees rather than another and that the union's concern is grounded upon the alleged breach of contract That another group of employees thereby ends up with the work does not automatically turn a basic contract dispute into a jurisdictional one. We also fail to see what contrary conclusion may be drawn from the second Waterway decision. It was carefully pointed out in that opinion that a determination was being made in that case pursuant to the order from the Ninth Circuit Court of Appeals which was to be considered only the law of that particular case. CHICAGO WEB PRINTING PRESSMEN'S UNION 7 work is not contested by the majority. The Typogra- phers claim for the work is stated explicitly in its letter to the Association that all such work "is to be performed by employees recognized by that con- tract." Moreover, Typographers insisted that its members perform the work until a determination was made by an arbitrator as to the propriety of Field's prior assignment of the work to Metropolitan's employees. The Pressmen, by threatening to strike in the event that Field allowed the matter to proceed to arbitration, converted this dispute over the assign- ment of composing room work into a jurisdictional dispute. The fact that the Typographers has couched its claim for the disputed composing room work in terms of a request for arbitration is not adverse to a finding that a jurisdictional dispute exists. In Williams Press, Inc.,7 the Board held, under facts virtually identical to the case at bar, that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated when one union (the Pressmen) threatens to strike in the event that the employer submits that union's work assignment to arbitration with another union (the Typographers).8 Likewise, the Typographers contention that the real issue herein is whether Fields violated the subcontracting provisions of their contract is not dispositive under our case law . Thus, the Board has rejected such arguments where, as here, a concurrent or ultimate objective of the union in attempting to force changes in the employer's subcontracting practices is to force or require a reassignment of the disputed work to the employees represented by it.9 In short, by initiating arbitration to determine whether Field's assignment of the disputed work violated the contract, the Typographers implicitly is claiming the work in dispute as its own, and is presenting a jurisdictional 7 Albany Printing Pressmen and Assistants' Union No 23, AFL-CIO (Williams Press, Inc), 166 NLRB 693 8 See also Printing Trades Specialty Local No 531 , International Printing Pressmen and Assistants ' Union of North America, AFL-CIO (George Banta Company, Inc), 201 NLRB 255. 9 Local Union 354, International Brotherhood of Electrical Workers, AFL-CIO (F G Johnson Company, Incorporated), 200 NLRB No. 92; United Brotherhood of Carpenters and Joiners of America, Local No 753, AFL-CIO (Blount Bros Corporation), 175 NLRB 496,497 and cases cited in In. 3 therein ; Local 5, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Arthur Venneri Company), 145 NLRB 1580, 1589, Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Western Electric Company, Incorporated), 144 NLRB 1318, cases cited in In 6 therein 10 F G Johnson Company, Incorporated supra 11 N LR B. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System), 364 U.S. 573 12 Local Union No 3, International Brotherhood of Electrical Workers, AFL-CIO ( Western Electric Company, Incorporated), 141 NLRB 888; Sheet Metal Workers International Association, Local Union 28, AFL-CIO (Deisel Construction a division of Carl A. Morse, Inc), 196 NLRB 1065, International 323 claim cognizable under Section 8(b)(4)(D) of the Act.10 Furthermore, the Typographers contract with Field is not by itself dispositive of the Typographers claim for the disputed composing room work but is merely one factor to be considered in making an award of the disputed work.l i While the disputed work involves composing room work and may arguably be covered in its contract with Field, the fact remains that this is new work which was not previously performed by anyone. Thus, the Typographers cannot claim that under its contract there is no doubt that the work belongs to its members alone, and thus that no jurisdictional dispute exists. The fact that there are two employers, Field and Metropolitan, is immaterial to the issue of whether a jurisdictional dispute exists. The Board has long held that jurisdictional disputes are not limited to compet- ing groups of employees working for the same employer, but also extend to attempts to force the assignment of work from employees of one employer to employees of another.12 It is also immaterial that the Typographers do not seek to perform the disputed work at Metropolitan's facilities since the controlling factor is that they do expect to do it at Field's composing room. 13 In light of the foregoing, it is difficult to see what bearing Safeway Stores, Incorporated, supra, has on the instant proceeding. In that case, the Board held that there was no jurisdictional dispute where displaced employees picketed in an attempt to regain their jobs and where only one group of employees claimed the disputed work. On the other hand, in the instant proceeding the threat of picketing was made by the employees who were performing the disputed work14 for the purpose of preventing Field from "unilaterally" arbitrating the Typographers claim for Brotherhood of Electrical Workers, AFL-CIO, Local No. 145 (Comanche Machine Tool Company, Inc), 188 NLRB 255; Local 804, Delivery and Warehouse Employees, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Gimbel Brothers, Inc.), 168 NLRB 214; Local 19, International Longshoremen 's Association, AFL-CIO (Marine Association of Chicago), 151 NLRB 89; Plumbers and Fitters Local 761 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO(Matt J. Zaich Construction Co ), 144 NLRB 133; International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Treasurers and Ticket Sellers Local No. 862, AFL-CIO (Allied Maintenance Company of Pennsylvania, Inc), 137 NLRB 738, Local No. 48, Sheet Metal Workers International Association, AFL-CIO (Gadsden Heating and Sheet Metal Company), 119 NLRB 287; N.L R B v. Local 825, International Union of Operating Engineers, AFL-CIO [Burns and Roe, Inc 400 U.S. 297 (1971) 13 Sheet Metal Workers International Association Local Union 28 (Deisel Construction), supra. 14 Such a threat by the union currently performing the disputed work is proscribed by Sec. 8(b)(4)(D) of the Act Printing Trades Specialty Local No 531, supra, Albany Printing Pressmen and Assistants' Union No. 23, supra. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the work which neither Union had performed in the past.15 Thus, contrary to the majority, the dispute herein is not "between an employer and a union" nor was the dispute "created" by Field's assigning the work away from one of the unions. Rather, the evidence clearly establishes that the dispute herein is between the Typographers and the Pressmen over which group of employees is entitled to perform the composing room work for Suburban Week. Fields, after assigning the work to Metropolitan, whose employees are repre- IS Likewise distinguishable is Waterway Terminals Company, supra There, a majority of the Board found that no rival claim for the disputed work was presented by Local 8's letter demanding continued employment for its members who were displaced by the employer's reassignment of the work performed by them There are no displaced employees here since, as indicated above, the work in question was new work. In any event, the view expressed by the dissent in Waterway was upheld by the court of appeals in sented by the Pressmen, was presented with dual claims over the disputed work and was thereafter threatened with picketing by the Pressmen to prevent a reassignment of the work to employees who were members of Typographers. In our view, this is a situation that Congress contemplated when it direct- ed the Board to decide which of the conflicting claims was meritorious. Accordingly, we would find a jurisdictional dis- pute, and would determine the merits of the dispute. its remand of that case to the Board . Waterway Terminals Co v. N LR B, 467 F 2d 1011 (C A 9) The Board subsequently found , in accordance with the court view, that even the facts in Waterway presented a jurisdictional dispute cognizable under the Act International Longshoremen's and Warehousemen 's Union Local 8 (Waterway Terminals Company), 203 NLRB No 126.