Local 245, Graphic Arts Int'l Union

LOCAL 245, GRAPHIC ARTS INTL. UNION 407 Local. No. 245, Graphic Arts International Union, AFL-CIO and Graphicscans Corporation and Kahle Printing Company. Cases 13-CC-849 and 13-CC-854 September 17, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On March 31, 1975, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Parties filed exceptions, the General Counsel filed a supporting brief, and the Respondent Union filed a brief in answer to the exceptions of the General Counsel and the Charging Parties. 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 considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order .2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaints herein be, and they hereby are, dismissed in their entirety. vember 20-21, 1974.' Separate identical charges were filed against Local 245 (herein called the Union), by Graphic- scans Corporation 2 on September 4 and by Kable Printing Company (herein called Kable) on October 15. The com- plaints, issued on September 17 and October 30, were con- solidated on October 30. This case arose during a primary dispute between Kable and its photoengravers, represented by another local of the Union's International . In May, when its photoengravers went on strike, Kable began negotiating with a secondary employer, Graphicscans, to engrave the rotogravure cylin- ders needed for publication of the American Home maga- zine. However, relying on the "struck work" clause in their union contract, Graphicscans' photoengravers (represented by the Union) refused to work on the cylinders which Ka- bel had sent to Graphicscans to be engraved. Thereafter, Kable began arranging for this test case, to test Kable's "right" to have its customers (like the American Home publisher) "to place work themselves" with rotogravure trade shops (like Graphicscans), to enable Kable to retain the customers and continue the rotogravure printing dur- ing the strike. Accordingly American Home, upon Kable's recommendation, placed the order for Graphicscans to en- grave cylinders from Kable and return them to Kable for printing. In September, the Union took the position that the en- graving of the cylinders being sent by Kable to Graphic- scans was "struck work," and notified Graphicscans that its photoengravers "will not engrave those cylinders." The primary issue is whether Graphicscans had so " entangled" itself "in the vortex of the primary dispute" at Kable as to become Kable's "ally," performing "struck work"; or whether the ally doctrine is inapplicable, and the Union therefore unlawfully coerced Graphicscans in violation of 'Section 8(b)(4)(ii)(B) of the National Labor Relations Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, the Union, and the two Charging Parties, I make the following: FINDINGS OF FACT ' In his Decision, the Administrative Law Judge held that the work in controversy is "struck work." We agree. In this respect, however, we deem it unnecessary to pass upon his finding that Kahle Printing Company's alleged decision to close down permanently the rotogravure preparatory portion of its business remained "prospective" in nature at the time of the conduct herein alleged as unlawful . At the hearing, the General Counsel specifically disclaimed any relevance between that alleged decision and the issues raised in this proceeding and no party argued its relevance in briefs to the Admin- istrative Law Judge. 2 We find the Byrne case (Laborers' International Union of North America, Local 859 v. N.L.R.B., 446 F.2d 1319 (C.A.D.C., 1971), distinguishable on the facts. Hence, it is not dispositive of the issues raised herein , and we do not rely on it in adopting the Decision of the Administrative Law Judge. DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge: These consolidated cases were tried at Chicago, Illinois, on No- I. JURISDICTION Kable, an Illinois corporation, is engaged in the manu- facture of magazines and catalogs in Mount Morris, Illi- nois ; and Graphicscans, another Illinois corporation, is a rotogravure trade shop in Schiller Park, Illinois. Both Ka- ble and Graphicscans annually receive goods and materials valued in excess of $50,000 directly from outside the State. I find that Kable and Graphicscans each is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. 1 All dates are in 1974 unless otherwise stated. 2 The names of the Union and Graphicscans were corrected at the trial. 220 NLRB No. 75 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If. ALLEGED UNFAIR LABOR PRACTICES B. Arrangements for Test Case Faced with a continuing strike, and its inability to farm out the "struck work," Kable began making arrangements to send its rotogravure cylinders again from the struck plant to Graphicscans, beginning in August for the Octo- ber issue of American Home, and to have Graphicscans do the engraving, despite the earlier rejection. The plan was to have the publisher himself place the order for the engrav- ing on Kable's cylinders. This procedure was mentioned in an interoffice communication to Kable from its parent company, Western Publishing Company, dated June 14, and stating in part: As you know, we are in the process of testing our right of customers to place work themselves and once we are able to get a judgment against the local union, either in Chicago or Milwaukee, I believe we will be able to rather easily move work in and out of the front-end trade shops. [Emphasis supplied.] Pursuant to this plan, Kable entered into a month-by- month agreement with the American Home to produce the magazine under the terms of their proposed 5-year printing contract, provided that the publisher himself would place the order for the film work and the cylinder engraving, for which Kable particularly recommended Graphicscans. (Kable recommended Graphicscans over the two Milwau- kee trade shops.) Evidently relying on Kable to make all the arrangements with Graphicscans to perform the work while Kable's pho- toengravers remained on strike, American Home publisher, Warren Erhardt, sent Graphicscans a cryptic purchase re- quisition, dated July 11, ordering the cylinders to be en- graved on a month-to-month basis "as necessary," without any mention of the price, terms, or conditions. The requisi- tion read: Make Rotogravure Cylinders as Required for the Oc- tober 1974 Issue of American Home and as necessary For 11 Issues Thereafter. [Emphasis supplied.] Erhardt testified that he had not had any telephone com- munications with anyone at Graphicscans at the time he sent this requisition; that he did not know of anyone from American Home who had visited the Graphicscans plant; and that he did not know of any of his representatives who had asked to see a sample of Graphicscans' work. When asked by the Graphicscans counsel whether the issuance of the purchase order without stating any price was "a normal way of doing business," Erhardt answered that he did not know, but that the American Home printing consultant and production manager "indicated that was the way to go " On July 16, 5 days after the mailing of the requisition, Kable wrote American Home a letter, assuming responsi- bility for producing the entire October issue (without ex- cluding responsibility for the film work and cylinder en- graving), and referring to future issues "as arrangements can be completed": We have agreed that Kable will produce for you the October 1974 issue of American Home Magazine un- der the provisions of the presently proposed printing A. Background Kable, whose printing plant in Mount Morris is located about 100 miles west of Chicago, entered into a subcon- tract in late 1973 to produce the rotogravure part of the American Home magazine, beginning with the December 1973 issue. By March, it printed over half of the magazine, performing all the film preparatory work, cylinder engrav- ing, and printing for the rotogravure pages to be included in the magazine. In January or February, Kable began negotiating with American Home Publishing Company, Inc., the new owner of the American Home magazine, to print the entire maga- zine, using the rotogravure process, beginning with the Oc- tober issue. By late June, Kable and the American Home publisher had reached virtual agreement on the final form of a 5-year printing contract, covering all the film, cylinder, printing, and binding work on the magazine. However, the publisher refused to sign the contract because of the uncer- tainty over Kable's ability to provide the necessary roto- gravure cylinder work. On May 10, Kable's photoengravers, who performed the film and cylinder work, had gone on strike. (They were represented by Local 91-P, a sister local of the Union.) Kable had been negotiating with Graphicscans, a rotogra- vure trade shop in Schiller Park, near O'Hare Airport, and also with two Milwaukee trade shops (S & M Rotogravure Service, Inc., and Mueller Color Plate Company), but, be- cause of the "struck work" provisions in the union con- tracts, Kable had been unable to farm out the cylinder engraving. (The Union's agreement with Graphicscans provided: "No employee shall be required to handle any struck work from any plant struck by any local of the Graphic Arts International Union other than work custom- arily performed for the employer involved in the strike." The legality of this provision is not challenged.) The roto- gravure film work was not a particular problem. Graphic- scans had done some film work for American Home, and the Union did not consider this "struck work." However, Graphicscans had never engraved any cylinders for Kable, whose own employees had performed this work, and Gra- phicscans had never engraved any magazine-size cylinders. Moreover, the engraving of the cylinders for American Home during the strike would involve sending Kable's blank cylinders (required to fit Kable's printing presses) from the struck plant-across the picket line-to the trade shop, having the trade shop's union engravers perform the striking employees' work on the struck company cylinders, and returning the engraved cylinders to the struck plant. Nevertheless Kable, being required under the subcontract to provide the rotogravure part of the magazine through the September issue, sent four of its cylinders to Graphic- scans in May for engraving. The work was rejected under the "struck work" clause. Kable then instructed Graphic- scans to forward the Kable cylinders to Mueller in Mil- waukee, where the work was also rejected for the same reason. (That July issue of the magazine was then printed without any rotogravure pages.) LOCAL 245, GRAPHIC ARTS INTL. UNION 409 contract between us, as they shall be applicable to this single issue. Thank you for your confidence. We are looking for- ward to the continued production of American Home, as arrangements can be completed. I note that at the trial the Kable counsel contended that, on July 22, Kable announced its "decision to go out of the cylinder-making, roto processing business " to its striking Local 91-P. However, neither the General Counsel, nor Kable or Graphicscans, asserts in this proceeding that this purported decision has any bearing on whether or not Gra- phicscans was an ally of Kable in September, when the Union is alleged to have violated Section 8(b)(4)(ii)(B) of the Act. In fact, Kable counsel George Blake argued at the trial that "whether Kable is out of [the cylinder-engraving] business or not . . . since July 22 is the subject for consoli- dated cases" involving S & M Rotogravure Service and scheduled for trial in Milwaukee on December 2. "I think this has no relevancy and can only confuse this case." The General Counsel stated his agreement, arguing : "The issue here is who gave the work to Graphicscans? Was it the customer, American Home, or was it Kable? And what happened in the other cases has no materiality." Thereaf- ter, Kable's sales vice president, John Sayles, the witness on the stand, confirmed that in July, Kable had notified Local 91-P that "We are no longer doing rotogravure work. Your unit has vanished." Nevertheless, despite this evidence, I find that the ceasing-cylinder-engraving an- nouncement, even if made in good faith, was prospective in nature and had no bearing on the relationship of Kable and Graphicscans in September. Contrary to the an- nouncement, Kable had continued to engrave its own cyl- inders, for Travel and Leisure, TV Week, and other maga- zines. In fact, at the time of trial in November, Kable Vice President Sayles testified that Kable had "in the neighbor- hood of 20 or so," or somewhere between 15 or 20 supervi- sory and salaried persons engraving some cylinders in the plant, because "We have not been able to have somebody else make them." (Concerning Travel and Leisure, he ex- plained that American Express, which owns that magazine, "has not wanted to get involved in a labor dispute in any way and has chosen not to place orders themselves for cylinders on the outside.") Therefore in September, at the time of the alleged unfair labor practices , Kable remained in the cylinder-engraving business. Depending perhaps on the outcome of economic pressures of the strike, and vari- ous cases in litigation, Kable and its striking photoengrav- ers might or might not, sometime in the future, resolve their differences and resume cylinder engraving in the plant. The American Home purchase requisition, recom- mended by Kable, was for Graphicscans to engrave cylin- ders for succeeding months "as necessary," thereby imply- ing that Kable was expected to resume its own engraving in the event that the Local 91-P strike was settled. Conse- quently in September, when the Union treated Graphic- scans as Kable's ally, doing struck work, the Union had no way of knowing whether Kable would eventually cease its cylinder-engraving business or, even if Kable's announce- ment to Local 91-P was sincere at the time and not a mere bargaining ploy, whether Kable would later change its po- sition as the outcome of the strike and the litigation be- came clearer. The Union did nothing to interfere with Graphicscans' engraving of the cylinders from Kable's plant until Sep- tember, when the extent of the production arrangements between Kable and Graphicscans was known, and when Kable was continuing to engrave some of its own cylinders. C. Production Arrangements between Kable and Graphicscans Kable furnished Graphicscans with its manufacturing schedule, specifying each step of Graphicscans' film and cylinder work; sent Graphicscans not only Kable's blank cylinders to be engraved, but also Kable' s carts to trans- port the cylinders through the trade shop; approved (with necessary corrections) and sent to Graphicscans the type and art work received by Kable from the publisher; gave Graphicscans detailed layout instructions and necessary changes and corrections; received and checked prints from Graphicscans before authorizing the engraving of the cyl- inders; and closely coordinated the work between itself and Graphicscans. Robert McCann, Graphicscans' general manger, listed additional customary contacts between a ro- togravure trade shop and a printer. (As an example, the trade shop must follow the printer's specifications in mark- ing the edges of the cylinder to satisfy the electronic eye on the printing press.) I note that, despite these production arrangements, the cylinders for the October issue (the first magazine cylinders ever made by Graphicscans) did not satisfy Kable. Graphicscans' General Foreman Dennis Bayette, when examined by Kable's counsel on direct ex- amination, revealed that Kable "wanted us to help them out" and "do something with the cylinders to make them runable." However, Kable did not return them " Because by that time it was common knowledge that they had gone to Kable and that they couldn't come back. Kable was on strike." There were also other arrangements between Kable and Graphicscans. Graphicscans forwarded its invoices to American Home via Kable, which verified that the work was done as scheduled by Kable. In addition, Kable ap- proved additional charges made by Graphicscans , as well as some overtime. (The evidence establishes that Kable did not charge American Home for the cylinder-work price which was included in the schedule of prices in the pro- posed written contract, but the evidence does not disclose the basis of Graphicscans' charges for making the cylin- ders.) D. The Union's Notification On September 4, about 7 days before the engraving work was scheduled to begin on Kable's blank cylinders which Graphicscans had received from Kable for the November issue of American Home, Union Steward Lawrence Glines went to Graphicscans General Manager McCann's office and "informed me he had received orders that he was to inform myself that we the men, will not engrave those cylin- ders" but that "it was okay to go ahead and continue work on the film positives." (Emphasis supplied.) Later that 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same day, when McCann was at the union headquarters on other business, McCann mentioned to Union Executive Vice President Harry Conlon, "I understand you are not going to let the men engrave the November issue of the American Home." Conlon answered, "That's right," and asked, "By the way, can I ask you who you are going to invoice that work to?" McCann responded, "Yes. The American Home Publishing Company"-without mention- ing that Graphicscans' invoices to American Home had been sent to Kahle. "On September 6" (as stated in General Manager Mc- Cann's September 9 affidavit, which was submitted to sup- port the 10(1) temporary restraining order which was is- sued on September 11), "Dennis Bayette, General Foreman, reported to me that there had been a discussion with the Union Steward regarding the engraving work to be done on American Home. Mr. Bayette reported that the Steward specifically stated that the union employees [em- phasis supplied] would not do the engraving work on the cylinders." (At the trial on November 20, General Fore- man Bayette recalled that Union Steward Glines made the ambiguous statement that " We [emphasis supplied] couldn't work on American Home cylinders, that it had been struck work"-without defining "we.") Although Bayette was a member of the Union, he testified, "Normal- ly I don't do any production work. I just supervise it. If I don't like it, if it is proofing they have to do it over." (He was not alleged to be an agent of the Union.) After receiv- ing this information from Glines, Bayette notified his etch- ing foreman and, as Bayette recalled , "probably" also the proofers "by the time I went home." The word rapidly spread around the plant. There is no evidence that the Union itself induced any of the employees not to do the so-called "struck work." (The consolidated complaints al- leged violations of only Section 8(b)(4)(ii)(B). However, on the first day of trial, I granted a motion to add an 8(b)(4)(i)(B) allegation upon the representation that the conversation between Steward Glines and General Fore- man Bayette was "in the presence of employees ." On the second day of trial, after Bayette had testified to the con- trary, I granted the Union's motion to strike the allegation. Then at the close of the 2-day trial, the General Counsel moved to add an allegation that Steward Glines informed a foreman "employee" that "the Union was not going to per- mit him or the other employees to work on engraving for the November issue of American Home," in violation of Section 8(b)(4)(i)(B). I rejected the motion to amend, ruling that the belated theory was untimely and contradicted by the evidence.) After the temporary restraining order was issued on Sep- tember 11, Graphicscans' employees proceeded to engrave the cylinders for the November and December issues. The temporary restraining order was extended, by agreement of the Union, until November 14, when it became moot. Meanwhile, about October 10, the American Home pub- lisher signed a 6-year printing contract with another printer to produce the magazine, using the letterpress process. (Publisher Erhardt denied that "any labor problems at Graphicscans" were related at all to his decision to transfer the work to a different printer.) At the time of trial, no other charges related to the Kable labor dispute had been filed against the Union. E. Narrow Issue Involved At the beginning of the strike, when Kahle was obligated to produce the American Home rotogravure pages under a subcontract, Graphicscans was eager to begin engraving Kable's cylinders. However, under the "struck work" clause in Graphicscans' agreement with the Union, the en- graving of the cylinders which Kable sent to the Graphic- scans plant was rejected as "struck work." Then, as Kahle was negotiating with the new publisher of American Home to produce the entire magazine, Kable arranged for the publisher to place a requisition directly with Graphicscans to engrave Kable's cylinders during the strike. The narrow issue in this proceeding is whether, under the circumstances, Graphicscans' engraving of Kahle's cyl- inders during the strike so entangled Graphicscans in the primary dispute that Graphicscans thereby became Kable's ally, performing struck work. The General Counsel, ignoring Kable's June 14 interof- fice communication (stating that Kable was "in the process of testing our right of customers to place work themselves" to enable Kahle "to rather easily move work in and out" of the rotogravure trade shops), contends that American Home "made the arrangements" for the cylinder engraving and "paid Graphicscans for this work. Kable, the primary employer, played no part whatsoever, even indirectly, in this financial transaction" between American Home and Graphicscans. The General Counsel argues that the 5-year contract (for Kable to produce the entire American Home magazine, beginning with the October issue) was never signed, that Kable was merely a potential customer of American Home for the cylinder-engraving work, that the cylinder engraving was never struck work, and that "the situation is no different where would-be or potential cus- tomers [like American Home] of a primary employer [Ka- ble] give certain non-struck work to the primary employer but at the same time because of the strike gives other work to some employer other than the primary employer." Kable, after citing a number of cases, contends that "There is no evidence of any arrangement, either direct or indirect, between Kahle and Graphicscans for the perfor- mance of the engraving work in question. . . . It was American Home who decided to give the work to Graphic- scans" and paid the bill. Ignoring Kable's "recommenda- tion" that American Home give the cylinder engraving to Graphicscans, Kable's brief argues: "Kahle was not in- volved in soliciting or negotiating this contract." Then, largely ignoring the above-discussed production arrange- ments between itself and Graphicscans, Kable contends: "The contacts that Kable had with Graphicscans were nothing more than those normally exchanged between the engraver and the printer, e.g., proofing of the cylinders." Kable further argues that "American Home certainly had the right to seek to have its work performed elsewhere when one of its suppliers has a labor dispute," and Gra- phicscans' agreement to do the work "does not make that employer an ally of the struck employer." Summarizing, Kable argues that "the evidence here fails to establish any sort of contractual arrangement instigated, designed or im- LOCAL 245, GRAPHIC ARTS INTL. UNION plemented by Kable to have its contractual obligations performed by Graphicscans that might justify the applica- tion of the ally doctrine." Finally, ignoring the fact that American Home's cryptic, July 11 purchase requisition of cylinders was only for the October issue and "as neces- sary" for 11 issues thereafter (without stating any price, terms, or conditions), Kable concludes in its brief that "American Home's decision to withdraw the work from Kable and to enter into a long-term agreement with Gra- phicscans was an arms-length , independent and practical determination that was fully within its rights under the law." Graphicscans, in addition, argues in its brief that "Kable did not participate in the arrangement between American Home and Graphicscans in any way" and that "Graphic- scans and Kable were competing cylinder engravers, and Graphicscans became American Home's engraver rather than Kable." Graphicscans denies that, under the cited cases, it is an ally of Kable. The Union, after citing in its brief many of the same ally-doctrine cases, contends that Kable "urged" that Gra- phicscans perform the cylinder engraving "so that Kable could maintain its printing contract with American Home," and that the "Arrangements to use Graphicscans were made between Kable and American Home Magazine. Graphicscans was not involved." The Union further argues that "The Record clearly reveals that Kable was the moti- vating force behind the transfer of the preparatory and cylinder work to Graphicscans. . . . The treatment of Graphicscans by American Home in all stages of the con- tract shows that, while it may have signed the purchase orders, it was not concerned with the experience, capability or prices of Graphicscans' work-that it merely acquiesced in the decision of Kable." The Union contends that Kable "directed the work at Graphicscans," citing evidence that Kable's involvement in the relationship between American Home and Graphicscans extended "well beyond" the nor- mal communications between a printer and a cylinder en- graver. The union brief also argues that "Kable credited American Home for cylinder engraving which Kable could not do because of the strike," that Graphicscans was aware of the Union's contention that this was struck work, and that the only work which the Union's members allegedly refused was the cylinder engraving which had never been done at Graphicscans before, and which would have been performed at Kable but for the strike. The Union con- cludes: "With full knowledge, Graphicscans cooperated in using its employees as strikebreakers to perform work nor- mally performed by striking employees of Kable's rotogra- vure preparatory department. In so doing it entered the primary dispute" and "sacrificed its neutrality and now stands in the shoes of the primary employer, subject to lawful primary activity." F. The Ally Doctrine The ally doctrine has been recognized by the Supreme Court as a defense to an 8(b)(4)(B) charge "where the sec- ondary employer against whom the union's pressure is di- rected has entangled himself in the vortex of the primary dispute." National Woodwork Manufacturers Association v. 411 N.LR.B., 386 U.S. 612, 627 (1967). The Supreme Court cited, with approval, the leading Ebasco case, Douds v. Metropolitan Federation of Architects, etc., Local 231 [Pro- ject Engineering Company], 75 F.Supp. 672 (D.C.N.Y., 1948), and the Royal Typewriter case, N.L.R.B. v. Business Machine and Office Appliance Mechanics Conference Board, Local 459 [Royal Typewriter Company], 228 F.2d 553 (C.A. 2, 1955), cert. denied 351 U.S. 962 (1956). In Ebasco, Project performed a larger percentage of Ebasco's work after the strike began. The Court, estab- lishing the "ally" doctrine, ruled (75 F.Supp. at 676-677): To suggest that Project had no interest in the dispute between Ebasco and its employees is. to look at the form and remain blind to substance.... Manifestly it was not an innocent bystander, nor a neutral. It was firmly allied to Ebasco ... . The evidence is abundant that Project's employees did work which, but for the strike of Ebasco's employ- ees, would have been done by Ebasco. The economic effect upon Ebasco's employees was precisely that which would flow from Ebasco's hiring strikebreakers to work on its own premises. In Royal Typewriter (228 F.2d at 557), the Second Circuit approved the "ally" doctrine and Judge Rifkind's "well reasoned opinion" in the Ebasco case. After reciting the fact that Royal advised customers that it would make reim- bursements for repairs during the strike, but that there was only one incident of Royal contacting an independent re- pair service directly, the Court held (id. at 558-559): Apart from that incident there is no evidence that Royal made any arrangement with an independent di- rectly. It is obvious, however, that what the indepen- dents did would inevitably tend to break the strike. As Judge Rifkind pointed out in the Ebasco case: "The economic effect upon Ebasco's employees was precise- ly that which would flow from Ebasco's hiring strike- breakers to work on its own premises." r ... Where an employer is attempting to avoid the economic impact of a strike by securing the services of others to do his work, the striking union obviously has a great interest, and we think a proper interest, in pre- venting those services from being rendered. This inter- est is more fundamental than the interest in bringing pressure on customers of the primary employer. Nor are those who render such services completely uninvolved in the primary strike. By doing the work of the primary employer they secure benefits themselves at the same time that they aid the primary employer. The ally employer may easily extricate himself from the dispute and insu- late himself from picketing by refusing to do that work .... We therefore hold that an employer is not with- in the protection of § 8(b)(4)(A) when he knowingly does work which would otherwise be done by the 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD striking employees of the primary employer and where this work is paid for by the primary employer pur- suant to an arrangement devised and originated by him to enable him to meet his contractual obligations. The result must be the same whether or not the prima- ry employer makes any direct arrangements with the employers providing the services. [Emphasis supplied.] I note that in a law review article cited in Kable's brief, Levin, "Wholly Unconcerned": The Scope and Meaning of the Ally Doctrine Under Section 8(b)(4) of the NLRA, 119 U. Pa. L. Rev. 283, 290 (1970), the author wrote: Royal Typewriter established the core of the struck work doctrine: when a secondary does work which but for the strike would have been done by the strikers, and that work helps the primary to avoid the strike's im- pact by continuing to provide goods and services to his customers in his name, the primary is using the sec- ondary employees as strikebreakers, and the union may appeal to them as though the primary had im- ported them onto his premises. [Emphasis supplied.] Elsewhere in the article, the author stated (id. at 301) that "the relevant question is not whether the secondary em- ployees do the work of striking or nonstriking primary workers, but whether diverting work to the secondary helps the primary employer to evade any economic pressure exerted by the strike." (Emphasis supplied.) The ally doctrine is inapplicable when, as in United Ma- rine Division etc., Local 333 (D. M. Picton & Co.), 131 NLRB 693, 698-699 (1961), the secondary employer per- formed work on its own behalf, at the request of the cus- tomers, without any arrangement between the struck em- ployer and the customer or secondary employer, and without any benefit to the struck employer in reducing the impact of the strike. In Picton, secondary employer Picton refused to perform tugboat services for struck employer Sabine, or at Sabine's request for any vessel under contract with Sabine for tugboat service. "Sabine conceived no plan ... in which Picton participated" to service Sabine's cus- tomers during the strike, and the services performed by Picton (a competitor of Sabine) "did not benefit Sabine in any way." Accordingly, in "the absence of a direct or indi- rect arrangement by the struck employer with the customer or secondary employer (Picton) to have the work performed for its [Sabine's] account, the secondary employers do not lose the protection afforded a "neutral" under the Act." (Emphasis supplied.) Citing this Picton decision, the Board in Truck Drivers Local 413, Teamsters (Patton Warehouse, Inc.), 140 NLRB 1474, 1482-83 (1963), found to be illegal a "struck goods" clause which permitted any employee to refuse to perform any services which would have been performed by striking employees, because of the absence of any requirement in the clause for an "arrangement between the struck and the secondary employers" under the Royal Typewriter "ally" or "struck-work" doctrine. In Truck Drivers Local 413 [Patton Warehouse, Inc.] v. N.L.R.B., 334 F.2d 539, 547, (C.A.D.C., 1964), cert. denied 379 U.S. 916 (1964), the Court enforced in relevant part, with this reservation: We refrain from defining the exact limits of the ally doctrine, however, and do not decide whether the [Royal Typewriter] tests are adequate for all variations in factual situations . Such spelling out is best left for the elucidating process of gradual inclusion and exclu- sion provided by specific cases. Patton, in turn, was cited by the Board in Laborers, Local 859 (Thomas S. Byrne, Inc.), 180 NLRB 502-503 ( 1969), where independent truck haulers delivered the primary employer's product during a strike, thereby reducing the impact of the strike . The striking employees of McDonald, which was engaged in the business of selling and delivering stone to construction contractors, had delivered the stone in McDonald's trucks before the strike. During the strike, Byrne and two other contractor customers of primary em- ployer McDonald-"without encouragement or suggestion from McDonald"-arranged to have the McDonald stone delivered to their jobsites by the independent haulers, and deducted the truck charges from the contract price of the stone. The Board found that , in the absence of any ar- rangement between McDonald and the contractor custom- ers for the delivery of the stone, Byrne and the two other contractors were not "allies" for the purposes of Mc- Donald's labor dispute with the union . (The Board did not directly mention the status of the independent haulers.) The Court, in Laborers, Local 859 [Thomas S. Byrne, Inc.] v. N.L.R.B., 446 F.2d 1319, 1321 (C.A.D.C., 1971), agreed that the customers did not become allies of McDonald by calling on the independent haulers to deliver the stone, but found that, despite the absence of any arrangement by Mc- Donald for the delivery, the independent haulers were "al- lies" of McDonald: We hold that the Independents were "struck-work al- lies" of McDonald. We reject the Board's reasoning that the delivery of the stone was not "struck-work" because the arrangements for the delivery were not made by McDonald. We hold that any employer whose employees are performing work which would normally be performed by striking employees is an ally of the struck employer and that the work being done is struck work and that it is not important how the ally gets that work. In [the Ebasco case] the court laid heavy emphasis on the eco- nomic effect of the work performed by the ally's em- ployees. . . . In the Royal Typewriter case . . . the court held the independent repairmen who performed the struck work to be allies. In that case Royal told the customers to whom it was contractually obligated to render repair service to call an independent repair company and to then bill Royal for the services. In only one case did Royal make the arrangement direct- ly. The court noted these facts and then said: "It is obvious, however, that what the independents did would inevitably tend to break the strike." In terms of the realities of the labor dispute it makes no difference who makes the telephone call which brings into the dispute those who do the struck work. Those who do the work which the striking employees would otherwise do are the ones who alter the pressures in- volved in the struggle-it is they who are involved in the dispute and it is their employer who is the "struck- work ally." [Emphasis supplied.] LOCAL 245, GRAPHIC ARTS INTL. UNION 413 G. Concluding Findings This is not a case, like Picton, where neutral customers withdrew the work from a struck employer and assigned all the work to a secondary employer, who performed the work on its own account, without any benefit to the struck employer. Neither is this a case, like Byrne, where the neutral cus- tomers, "without encouragement or suggestion" from the struck employer , took actions (arranging replacements for the struck delivery service) which reduced the impact of the strike on the struck employer's remaining business (sell- ing the stone), thereby helping to break the strike . (Even if this were such a case, and if struck employer Kable had not encouraged or suggested that Graphicscans be given the cylinder-engraving work, Graphicscans would still be Kable's "ally" under the above-discussed ruling in the D.C. Circuit, because "In terms of the realities of the labor dis- pute it makes no difference" whether Kable or American Home "make[s] the telephone call" or sends the requisition to Graphicscans to engrave the cylinders.) Instead, this is a case in which primary employer Kable, in an effort to obtain the proposed 5-year American Home printing contract-despite the strike of Kable's photoen- gravers-arranged for Graphicscans to perform the cylin- der-engraving work of the striking employees, and ar- ranged for American Home to issue the cryptic July 11 requisition for the cylinder engraving (for the October issue and "as necessary" for 11 issues thereafter, without any mention of price, terms, or conditions). Kable then closely coordinated the work between its printing plant and Gra- phicscans' trade shop, furnishing some of the equipment. Kable also approved , for American Home, certain extra charges by Graphicscans, and some overtime ; and, when Graphicscans sent its invoices to American Home via Kable's printing plant, Kable verified the items on the in- voices for payment by American Home. Although the evi- dence does not disclose the amount which Graphicscans charged American Home for this work , the evidence shows that Kable deducted from the overall engraving-printing- binding price in the proposed 5-year contract, the amount Kable would have charged for the cylinder engraving. Thus secondary employer Graphicscans, pursuant to an arrangement devised and originated by primary employer Kable (to test its right to have its customers place requisi- tions for the struck work), knowingly accepted from cus- tomer American Home, and performed , the work which would have been performed by Kable's striking employees in the absence of the strike. As held in Royal Typewriter, 228 F.2d at 558-559, with reference to the secondary em- ployers doing struck work, "By doing the work of the pri- mary employer they secure benefits themselves at the same time that they aid the primary employer." I find that Graphicscans, by arrangement with Kable, performed the struck engraving work on Kable's cylinders, for Graphicscans' own pecuniary benefit and with full knowledge that by doing so, it was helping Kable to avoid the impact of the strike on the remaining American Home printing and binding work. I therefore find, in the language of the Supreme Court, that Graphicscans "entangled [itself] in the vortex of the primary dispute." National Woodwork, 386 U.S. at 627. Accordingly, I find that Graphicscans became Kable's ally, performing struck work, and that the Union's notifica- tion of Graphicscans that its photoengravers would not en- grave Kable's cylinders was lawful, primary activity. CONCLUSIONS OF LAW 1. When secondary employer Graphicscans, by arrange- ment with primary employer Kable, knowingly and for its own pecuniary benefit accepted from customer American Home and performed the cylinder-making work which Kable's striking photoengravers would have performed in the absence of the strike, it performed struck work to aid the primary employer and thereby entangled itself in the vortex of the primary dispute, becoming Kable's ally, with- in the principles of Royal Typewriter and National Wood- work. 2. By notifying Graphicscans, an ally of Kable in the primary dispute, that Graphicscans' employees would not do the struck work, the Union acted lawfully and did not violate Section 8(b)(4)(ii)(B) of the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 The consolidated complaints are dismissed in their en- tirety. 3In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.