Newark Typographical Union No. 103

4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Newark Typographical Union No. 103 a/w Interna- tional Typographical Union, AFL-CIO and Eliza- beth Daily Journal, a Division of Mid-Atlantic Newspapers and Newark Newspaper Pressmen's Union No. 8 a/w International Printing and Graph- ic Communications Union, AFL-CIO. Case 22- CD-266 August 27, 1975 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Elizabeth Daily Journal, a Divi- sion of Mid-Atlantic Newspapers, alleging that New- ark Typographical Union No. 103 a/w International Typographical Union, AFL-CIO, herein called Re- spondent, had 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 Respon- dent rather than to employees represented by New- ark Newspaper Pressmens' Union No. 8 a/w Interna- tional Printing and Graphic Communications Union, AFL-CIO, herein called Stereotypers. A hearing was held before Hearing Officer Mit- chell Kraus on April 14, 15, and 24, 1975, at Newark, New Jersey. All parties appeared at the hearing and were afforded full opportunity to be heard, to exam- ine and cross-examine witnesses, and to adduce evi- dence bearing upon the issues. Thereafter, briefs were filed by the Employer, Respondent, and Stereo- typers. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. BUSINESS OF THE EMPLOYER The Employer, Elizabeth Daily Journal, a Division of Mid-Atlantic Newspapers, a New Jersey corpora- tion, is engaged in the publication of a daily newspa- per. During the past 12-month period, the Employer subscribed to various interstate news services includ- ing the Associated Press, published various syndicat- ed features including columns by Ann Landers and William Buckley, advertised various nationally sold products including automobiles manufactured by the American Motors Corporation and the Ford Motor Company, and received gross revenue from its pub- lishing operations in excess of $200,000 and derived revenue in excess of $50,000 from its sale or perfor- mance of services for customers located outside the State of New Jersey. The parties stipulated and we find that the Employer is engaged in commerce with- in the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that Respon- dent Newark Typographical Union No. 103 a/w In- ternational Typographical Union, AFL-CIO, and Newark Newspaper Pressmens' Union No. 8 a/w In- ternational Printing and Graphic Communications Union, AFL-CIO, are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The present dispute involves the Employer' s news- paper facility in Elizabeth, New Jersey, where the Employer is in the process of transition from using hot type method, which it used exclusively prior to April 1974, to cold type method which it is adopting to publish its newspaper. Under the hot type method, linotype operators punched out lead characters in lines of type which were assembled in a metal frame or chase. A zinc engraved plate of photographs, which was prepared by independent contractors, was placed into the chase. Jobbers prepared advertise- ments by flat casting or cardboard like mats which contained the ad in relief. A flat lead plate was pro- duced from the mat and placed in the chase. The linotype work and assembling of the newspaper page in a chase was done in the composing room where employees are represented by Respondent, while the flat casting operation was performed in the stereo- type department by employees represented by Ste- reotypers. The completed chase was taken by hand- truck to the stereotype department where an image of the lead page was produced in relief from a mat from which a curved lead plate was formed. Such plate was attached directly to the presses for printing. Beginning in April 1974, the Employer introduced camera and NAPP equipment from which a plastic plate containing the image of photographs in relief 220 NLRB No. 2 NEWARK TYPOGRAPHICAL UNION NO. 103 5 form could be produced, and the plate was inserted into the hot type chase. As a result of the new meth- od, the Employer no longer sends photographs to in- dependent contractors for the production of zinc en- graved plate. The Employer began to receive advertisements on paper rather than a mat, and, with the use of the camera and NAPP equipment, a plas- tic plate is then produced directly from the paper containing the ad and placed in the hot type chase. Although the Employer began to receive fewer ad- vertisements on cardboard-type mats and the flat casting was gradually phased out, the Employer con- tinued to produce the paper through the hot type method. The Employer began producing some pages of copy and full-page advertisements through the cold type method in January 1975. In lieu of punching copy on a linotype machine, copy is keypunched into a computer which prints the copy on photocomposi- tion paper. Such paper is cut by arazor and is affixed to a grid or paper backing. Through the use of the new camera equipment, photographs and advertise- ments are reproduced on photosensitive paper and the end product is a velox which is affixed to the grid. Under the hot type process a plastic plate is placed in the metal chase. This plastic plate is pro- duced by the same camera equipment which pro- duces the velox. When the grid is completed a fully composed page known as a pasteup is formed. Through the use of the camera equipment and NAPP platemaking equipment, a plastic plate containing the image of the fully pasted-up page is formed. The plastic plate is presently sent to the stereotype department where a cardboard-type mat and a curved lead plate are produced. At the time of the hearing the stereotype department received hot type pages in a chase and cold type pages on a plastic plate. From the chase or plastic plate, the stereotype department produces a curved lead plate to be placed on the press for print- ing. The Employer planned to produce all pages through the cold type process beginning in May 1975. Also, the Employer planned to use the camera and NAPP equipment for the production of a plastic plate to be placed directly on the presses. After the implementation of this new process, the stereotype department will be eliminated as it will no longer be necessary to produce a curved lead plate. B. The Work in Dispute The work in dispute involves the performance of all camera and all NAPP plate-making equipment utilized in the publication of a newspaper at the Employer's facility in Elizabeth, New Jersey. C. Contentions of the Parties The Employer argues that the work in dispute should be awarded to employees represented by Re- spondent because of the terms of the applicable col- lective-bargaining agreements; Employer's assign- ment and preference; economy and efficiency of the Employer's business operations; skill, training, and experience; similarity of work in dispute to work cur- rently done by employees; and industry and area practice. Respondent contends that, during contract negoti- ations, the Employer granted it work jurisdiction over photoengraving and camera operations and that a contract was signed, effective September 27, 1973, to December 31, 1975. Respondent also contends that ever since the NAPP platemaking process was installed in April 1974 the work in dispute has been performed by Respondent's members; that the ste- reotypers have never performed the camera work at the Employer's premises; and that Stereotypers is es- topped from asserting its claim by virtue of a prior proceeding before the Board and its withdrawal thereof and its execution of its present contract with- out the inclusion of language covering the disputed work. Stereotypers contends that there was no valid, -le- gitimate threat to strike by Respondent which was intended to coerce the Employer in the assignment of the camera and NAPP platemaking machinery oper- ations; that Respondent notified the Employer by letter of March 12, 1975, in an attempt to precipitate a 10(k) hearing and circumvent the arbitration de- mand made by Stereotypers by letter dated March 5, 1975; that the language in the collective-bargaining agreement between Stereotypers and the Employer mandates that the operation of the camera and NAPP platemaking machinery used for the manufac- turing of direct printing plates be assigned to em- ployees of the stereotype department; and that Re- spondent did not communicate in any other manner a threat to strike, did not take a local strike vote, and did not notify the president and executive council of the International as required by its by laws. D. Applicability of the Statute Before the Board may proceed to the determina- tion of 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, and the parties have not agreed on a method for the vol- untary adjustment of the dispute. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties have submitted no evidence that they have adjusted or agreed on any method for the ad- justment of the present work dispute. The record shows that Respondent's counsel wrote a letter to the Employer's publisher dated March 12, 1975, which contained the following: This is to confirm the Union's claim of work jurisdiction covering the Knapp plate making work and camera work related to same being performed by your newspaper. This work is within our work jurisdiction, is being performed by us, and any action taken by the Company adverse to or inconsistent with our work juris- diction will result in strike action by our mem- bers, or such other economic sanctions and ac- tions as the Union considers appropriate. From the foregoing we find that Respondent threatened, in writing, to take strike action or such other economic sanctions it considered appropriate, and that on the basis of such threat there is reason- able cause to believe that Section 8(b)(4)(D) has been violated and that the case 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 the disputed work af- ter giving due consideration to all relevant factors involved. The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balanc- ing those factors involved in a particular case.' 1. Certifications and collective-bargaining agreements The parties stipulated, and we find, that there is no outstanding Board certification or award as to the disputed work involved herein. The Employer is a party to an agreement with Re- spondent effective September 27, 1973, to Decem- ber 31, 1975, which provides in section 2-11, "All Camera work, post-camera, darkroom and negative preparation work including opaquing, stripping and masking shall be under the jurisdiction of the Union and such work shall be performed only by journey- men and apprentices under the terms of this agree- ment. Press plate is not included in jurisdiction." Stereotypers agreement with the Employer covers a period from October 1, 1973, until September 30, 1975. However, such agreement was not signed until ' International Association ofMachinists, Lodge No 1743, AFL-CIO (J. A Jones Construction Company), 135 NLRB 1402 (1962). February 10, 1975. The second paragraph in section 12 of such agreement provides, "Should the Pub- lisher signatory hereto install within the jurisdiction of the Union as herein defined any machinery and/ or equipment as a substitute for an addition to the machinery and/or equipment now being manned by Stereotypers, such Publisher shall recognize the juris- diction of the Union over such machinery and/or equipment and shall make no other contract covering such work." Although Respondent and Stereotypers contend that their respective contracts cover the work in dis- pute, it is clear that neither contract specifically re- fers to such work. Thus, it would appear that neither collective-bargaining agreement is relevant in mak- ing a determination herein. 2. Company and industry practices The record shows that the Employer has been uti- lizing the camera and NAPP equipment since April 1974 and that since that time members of Respon- dent have been performing all work on this equip- ment. Additionally, the record shows that, after auto- mation occurred at various New Jersey newspaper publishers, the camera work was assigned to affiliates of Respondent and the platemaking to Stereotypers at one newspaper. At another newspaper the camera and platemaking functions were assigned to affiliates of Respondent. After the introduction of a photoen- graving process at one newspaper, the making of zinc engraved plates was assigned to Stereotypers, while at two other newspapers the work was assigned to affiliates of Respondent. An International represen- tative of the International Typographical Union, Frank Cremonesi, testified that in 58 newspapers throughout the Nation where the publisher intro- duced plastic plates the work was assigned to affili- ates of Respondent. Although industry practice is somewhat mixed and, therefore, inconclusive, it would appear that the factor of company practice favors the assignment of the disputed work to the Employer's employees who are members of Respondent Newark Typographical Union No. 103. Accordingly, we find that company practice favors the continued assignment of the work to the Employer's employees represented by Respon- dent. 3. Relative skills, economy, and efficiency of operations The record shows that there are presently 53 mem- bers of Respondent employed by the Employer and that 14 such members have received training in the NEWARK TYPOGRAPHICAL UNION NO. 103 operation of the camera and NAPP equipment. Krenz, the Employer's publisher, testified that a training period of 3 to 4 weeks is required to operate the camera and NAPP equipment but that experi- ence for 1 year was needed to become fully compe- tent in all facets of the disputed work. Although the only formal training given to Respondent's members was instruction from a NAPP representative who re- mained at the Employer's facility for several days, the Employer has given only Respondent's members an opportunity to work on the new machinery. While the record contains testimony that a mem- ber of Stereotypers, an employee of the Employer, stated that he received training in the operation of the camera equipment each Sunday from May to August 1974 at another newspaper, and performed camera functions in producing such newspaper on approximately six occasions when he acted as a sub- stitute, the record also shows that the member of Ste- reotypers did not operate the NAPP platemaking equipment because such newspaper did not utilize such process. As to the economy and efficiency of operations factors, there is testimony that two employees in ap- proximately 2 hours could produce the plastic plates of each pasted-up page to be used directly on the press, that the work flow would be irregular, and that therefore two employees would not be needed for 2 continuous hours. Also, there is testimony that two or three employees on the night shift and two em- ployees on the day shift would be needed to perform all NAPP and camera functions. However, these em- ployees would not be needed to perform these func- tions for an entire shift. The record shows that, by assigning the disputed work to Respondent, the Em- ployer can also assign employees performing camera and NAPP platemaking functions to perform other tasks in the composing room. Thus, it would appear that the factor of efficiency of operation favors the assignment of the disputed work to the Employer's employees who are members of Respondent. 4. Loss of jobs The Employer's publisher testified that during the past year two stereotypers had been laid off. Also, he testified that, when the Employer begins to produce NAPP plastic plates, he intends to eliminate the ste- reotype department. However, there is a possibility that other jobs might be found for some of the five employees who presently work in the stereotype de- partment. The Employer's plant manager testified that, if the camera and NAPP functions were not assigned to 7 Respondent, the Employer would lay off four or five of Respondent's members. Thus, the record is unclear as to whether the mem- bers of Respondent or the members of Stereotypers would be subjected to the greatest loss of jobs. There- fore, the factor of loss of jobs is inconclusive and not relevant herein. Conclusions Having considered all pertinent factors, we con- clude that the factors, including company practice and efficiency of operations, favor awarding the work to the employees of the Employer who are pres- ently performing the disputed work, and we shall de- termine that they are entitled to perform the work in dispute. In making this determination, we are assign- ing the disputed work to members of Newark Typo- graphical Union No. 103 a/w International Typo- graphical Union, AFL-CIO, but not to that Union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing facts and the entire record in this proceed- ing, the National Labor Relations Board hereby makes the following Determination of Dispute: Employees of Elizabeth Daily Journal, a Division of Mid-Atlantic Newspapers, who are currently rep- resented by Newark Typographical Union No. 103 a/w International Typographical Union, AFL-CIO, are entitled to the performance of all camera and all NAPP platemaking equipment utilized in the publi- cation of a newspaper at the Employer's facility in Elizabeth, New Jersey. MEMBER FANNING, dissenting: I would quash the notice of hearing in this case. Contrary to the findings of the majority, and in agreement with the Newark Newspaper Pressmens' Union No. 8, I would find that there was no valid and legitimate threat to strike by Respondent which could or would coerce the Employer in assigning the disputed work. While I am aware that in a 10(k) proceeding it is only necessary that there exist reasonable cause to believe that Section 8(b)(4)(D) has been violated, whether by threat or by conduct, I am also of the view that reasonable cause cannot be based on an agreement between two of the parties in such pro- ceeding to manufacture a threat for the convenience of placing the issue before the Board for its award of the disputed work. While the record here does not permit a finding that the parties voluntarily created 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the circumstances which placed the dispute: before the Board, it is clear that the Employer was not coerced by the written threats; that the members of Respondent were already performing the disputed work; and that Respondent did not follow its re- quired strike procedures, thereby giving rise to the issue of its sincerity in issuing the threat. Also, suspect herein is the timing of Respondent's threat, occurring as it did 7 days after the Stereotyp- ers letter seeking arbitration of the Employer's trans- fer of the operation of producing direct printing plates to employees in the composing room repre- sented by Respondent. The alleged strike threat here did not elicit the response usually associated with an employer who, once threatened, seeks redress of his grievances before the Board, since the Employer here proceeded to file a charge against Respondent only after it had unsuccessfully attempted to file charges against the Stereotypers. The record also shows that Respondent did not follow the procedures required by its bylaws and the laws of its International. Such laws require that local unions notify the president and executive council, the latter having the authority to order a strike. Also, a majority of the local's members present, at a meeting called for the purpose of voting whether to strike, must vote in favor of a strike. A reasonable inference can be drawn herein that the alleged written threat to the Employer that Respondent would strike was no more than a facade, and that the Employer could not have reasonably felt threatened by Respondent's wholly innocuous strike threat. Accordingly, as the record shows that the Employ- er could not have reasonably felt threatened by Respondent's written but evasive threat, and as Re- spondent did not in any other way threaten to strike the Employer, I would quash the notice of hearing in this case.