Long Island Typographical Union No. 915

LONG ISLAND TYPOGRAPHICAL UNION NO. 915 Long Island Typographical Union No . 915, Interna- tional Typographical Union, AFL-CIO and News- day, Inc. and Nassau County Printing Pressmen and Assistants' Union, Local 406, International Printing and Graphic Communications Union, AFL-CIO. Case 29-CD-222 February 7, 1977 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Newsday, Inc., herein called Newsday or the Employer, alleging that Long Island Typographical Union No. 915, International Typo- graphical Union, AFL-CIO, herein called the Typog- raphers, 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 its members rather than to employees represented by Nassau County Printing Pressmen and Assistants' Union, Local 406, International Printing and Graphic Communications Union, AFL- CIO, herein called Pressmen. Pursuant to notice, a hearing was held before Hearing Officer G. Peter Clark on June 30, July 14- 15, and August 3, 1976. All parties appeared 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, Typographers, and Pressmen filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings 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. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Employer, a New York corporation with its principal place of business in Garden City, New York, is engaged in the publication and distribution of a daily newspaper. During the past year, the Employer had gross revenues in excess of $500,000 and purchased goods and materials in excess of $50,000 directly from 15 firms located outside the State of New York. The parties stipulated, and we find, that the Employer is engaged in a business affecting 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. H. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Typogra- phers and Pressmen are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer, publisher of a daily newspaper with a circulation of approximately 470,000, is organiza- tionally divided into several departments: advertis- ing; editorial; production, which includes the press- room, newsprint, composing room, transportation, and stereotype; circulation; finance; employee rela- tions; administrative services; public relations; and administration. Newsday has collective-bargaining agreements with Pressmen, Typographers, and Inter- national Printing Pressmen and Graphic Arts Union, herein called Stereotypers. Pressmen, under separate contracts, represents employees in the pressroom, newsprint, transportation, plant maintenance, and, recently, editorial.' Stereotypers represents stereo- type employees and Typographers represents com- posing room employees. Until 1971, the Employer used the "hot type" process in producing plates for its presses. In that process, editorial copy was sent to compositors in the composing room. If the copy was to be in printed form, the compositors used a linotype machine to produce lines of type or slugs. After the lines were set, they were sent to the proofroom for comparison with the original copy for errors. The proof was then returned to the linotype machine where corrections were made. The compositor then spaced out the page in a special frame called a "chase." Newsday does not have a photoengraving depart- ment. Therefore, prior to the acquisition of the Spartan cameras, if photographs or other graphics were to be utilized on a page, a photoengraving was produced by Garden Engraving Company, herein Garden, an outside contractor. When the photoen- graving reached the composing room, it was affixed to a lead base and placed on the chase along with the printed matter. The pages were approved by the makeup editor, locked up, and rolled to the stereo- type department where the papier mache mat was 1 Pressmen was certified as the collective -bargaining representative for editorial employees on January 31, 1975 228 NLRB No. 3 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made. A lead plate was then made from the mat for use on the presses. Beginning in the early 1960's, the Employer gradu- ally began to convert to the "coldtype" process, a process centered around photocomposition. In this process, a photographic substitute is used instead of casting metal slugs from the linotype machine and graphic materials are in the form of "veloxes" rather than the photoengravings. The completed page is called a "mechanical." The Employer began preliminary studies of its typesetting and graphic needs because it was going to go into a complete "coldtype" process. In 1971 or early 1972, the Employer started to investigate the use of production cameras for making veloxes.2 With the purchase of the phototypositor in the early 1960's, the gradual conversion to the "coldtype" process began. This machine is located in the composing room and is operated by employees represented by Typographers. It is mainly used to do editorial, advertising, and some special types of designs. The phototypositor produces a picture of type rather than of an object. It operates by position- ing a film strip of a particular type, size, family, and style in front of a light source. The characters on the film are exposed to light sensitive paper thereby forming words and lines. In 1971, the Employer further expanded the "cold- type" process with the purchase of a photon machine, also operated by employees represented by Typogra- phers. This machine operates by a TTS tape, which has been coded and punched by an IBM computer. The computer justifies and hyphenates the text in the particular size and style that has been coded. The tape is put onto a photo unit that gives a photoposi- tive output. This photosensitive output is passed through the photocell in the photon machine and developed in columns of type. This photosensitive output is pasted onto the "mechanical." If a photo- graph or graphic is required, a "velox" is used. The velox is placed on the mechanical alongside the written material. The mechanical is then sent to the News Pager room where it is placed on the copy board of the News Pager II camera and a negative made.3 The negative is put on a light table, inspected for light seepage, and opaqued. When this is com- plete, the negative is sent to the Napp room for making a Napp plate.4 In making the Napp plate, a piece of aluminum is coated with photopolymer, placed in a photo unit, and exposed to light. The negative from the News 2 Newsday is presently published by using both the "hot type" and "coldtype" processes 3 The News Pager is a high-speed production camera which photographs the mechanical The News Pager is located in a separate room in the composing room area and is operated by employees represented by the Typographers Pager camera is placed on top of the aluminum and given a longer exposure to light. The plate is then placed in a washout unit and the jellied surface washed away, leaving a hard, exposed surface as the raised portion which will become the printed surface. The plate, cropped to size by a stereotyper, is picked up by a compositor who places the plate in the "chase" and rolls it to the mat roller. The Napp equipment, operated by employees who are repre- sented by Stereotypers, is located in a room adjacent to the News Pager room. As noted above, the Employer began investigating the use of production cameras in 1971 or early 1972. Thereafter, in 1975, the Employer purchased a Kenro camera. The Kenro, a vertical camera, is located, and operated by employees, in the editorial art depart- ment who are represented by the Pressmen. This camera, capable of enlarging and reducing objects, produces negatives from which veloxes are made for the Sunday part II section of the newspaper and special types of maps and surprints. The Kenro camera requires air-conditioning, a darkroom, and is sheet fed. The Kenro, which is not considered a production camera, does not give a consistently quality velox. The Robertson camera, also located in the editorial art department, was purchased to replace the Kenro. This camera performs the same basic function as the Kenro except it gives a better quality velox. The record evidence shows that the Kenro and Robertson cameras cannot be used in the production mode because they cannot be operated rapidly enough. The two Spartan cameras, turned over to the Employer for operation on June 21, 1976, are used in making a "half-tone" representation from a continu- ous tone glossy photograph. A glossy picture, re- ceived in the editorial department, is broken up into a dot-structure so that dots can be highlighted and shadowed. Once a picture is broken into dots, it is called a "half-tone." 5 The half-tone negative is placed on velox paper, put in an emulsion , and exposed to light. After developing in an automatic developing unit, the negative is peeled away and the remaining portion dried. The resultant product is a velox. Prior to the introduction of the Napp process, the newspaper printed approximately 100 pieces of art work per night on the editorial side of the newspaper and approximately 100 to 150 pieces of art work on the advertising side of the newspaper. During this time, 98 percent of the veloxes on the editorial side came from Garden; Newsday did not produce any 4 Prior to the acquisition of the News Pager in early 1975, Garden would make the negative of the mechanical by using the Spartan camera. From this negative, a metal engraving of the entire page was made 5 The half-tone is to be reproduced in the pages of the newspaper LONG ISLAND TYPOGRAPHICAL UNION NO. 915 17 veloxes on the advertising side. Approximately 75 percent of the veloxes on the advertising side were produced by Garden and 25 percent of the veloxes were supplied directly by the advertiser. In this pre- Napp stage, Newsday's editorial art department produced approximately 25-30 veloxes per week. After the introduction of the Napp system, 95 percent of the editorial side was done by Garden. During the post-Napp period, Newsday's editorial art depart- ment produced approximately 35 veloxes per week for use in the Sunday part II section and any special type of veloxes. With the introduction of the Spartan cameras, the necessity for subcontracting the produc- tion of veloxes to Garden will be eliminated. The Employer has assigned the work of operating the Spartan cameras to employees represented by Typographers. B. The Work in Dispute The parties stipulated that the work in dispute is the operation of the Spartan III reproduction camera located in Newsday's place of business at 550 Stewart Avenue, Garden City, New York. C. The Contentions of the Parties The Employer contends that the award of the disputed work to employees represented by Typogra- phers is supported by the uniform practice in the industry and the economy and efficiency of opera- tions. The Employer further argues that assignment to employees represented by Typographers will not result in a loss of jobs in the unit employees represented by Pressmen ; that the production of a small number of veloxes by the editorial art depart- ment does not amount to a company practice; that the skills of the editorial art department employees are neither required nor desirable in the operation of the Spartan camera; and that the Pressmen's collec- tive-bargaining agreement does not contain jurisdic- tional language supporting its claimed jurisdiction over Spartan cameras. Pressmen asserts that the camera operators em- ployed to operate the Spartan cameras are in the same generic classification as the camera operators who are included in its editorial department classifi- cation and this camera classification is properly covered by Pressmen's collective-bargaining agree- ment, an NLRB certification , and the practice of the Employer. Pressmen further asserts that assignment of the disputed work to editorial art department employees is more economical , efficient, and makes use of the skilled employees in the editorial art department. Typographers takes the position that if the opera- tion of the Spartan camera is not assigned to its members, it will increase the acceleration of job losses; the Spartan is a production camera and is not used for the same purposes as cameras now located in the editorial art department; employees represented by Typographers do work similar to the operation of the Spartan camera at other employers in the area; Typographers is involved in efforts to train and retrain its members regarding new technologically advanced equipment being used by newspapers throughout the country; and the efficiency and economy of operation favors the award to employees represented by Typographers. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the 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 that the parties have not agreed upon a method for the voluntary adjustment of the dispute. In December 1975, the Employer decided that the operation of the Spartan camera would be assigned to employees represented by Typographers. The presi- dent of Typographers was so informed in January 1976. Thereafter, on May 7, 1976, the Employer and Typographers signed a letter of understanding re- garding the operation and jurisdiction of the Spartan camera. By letter dated May 4, 1976, Pressmen requested discussion regarding installation of repro- duction cameras and, by letter dated May 17, demanded arbitration of its claim that camera work should be assigned to the editorial art department. Upon learning of Pressmen's demand , by letter dated June 14, 1975, Typographers informed the Employer that "the manning of the Spartan cameras is within the jurisdiction of Local 915 and if Local 406 members are assigned the work involving Spartan cameras, Local 915 will consider it a violation of the present agreement . . . . Local 915 will take whatev- er steps are necessary including a strike and picketing to protect the assignment of this work." On June 16, 1976, Pressmen sought court action in order to compel arbitration of the matter. On the basis of the Typographers June 14 letter, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the voluntary adjustment of the dispute within the 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of Section 10(k) of the Acts Accordingly, we find that this dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various 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 in- volved in a particular case.8 The following factors are relevant in making the determination of the dispute before us: 1. Certifications and collective-bargaining agreements In pertinent part, the contract between the Employ- er and Typographers, in its jurisdictional clause, provides: (a) Jurisdiction of the Union is defined as including all composing room work and the appropriate unit for collective bargaining includes employees performing categories of work such as: Hand composition; make-up; mark-up; copy cutting; lock up; proofreading; maintenance and repair (not requiring the occasional temporary services of outside experts) of all machinery, equipment and devices to the extent used in the composing room operation; operation of typeset- ting machines, strip casting machines; tape perfo- rating machines used in composing or producing type, Linasec and its input and output devices, phototypesetting machines (such as Fotosetter, Photon, Linofilm, Photo-Typositor, Monophoto, Coxhead Liner, Filmotype, Typro and Hadego) and other equipment or processes introduced under Section 2(b); waxing and paste-make up with reproduction proofs; processing the product of phototypesetting machines, including develop- ment and waxing; paste-make up of all type, hand-lettered, illustrative border and decorative material produced hereunder; ruling, correction, alteration and imposition of such paste-make up serving as the completed copy. Paste-make up as used in this paragraph includes all pasteup of photostats and prints for use in the production of the newspaper and includes all photostats and positive proofs of illustrations (such as Velox) 6 The record shows that the Typographers does not take part in three- party arbitrations over jurisdiction Moreover, the Employer's collective- bargaining agreements with the Pressmen and Typographers do not contain provisions for tripartite voluntary adjustment of disputes between the parties. 7 N L.R B v Radio & Television Broadcast Engineers Union, Local 1212, where positive proofs are supplied without sacri- fice of quality or duplication of effort. All of this work within the jurisdiction of the Union per- formed by employees as provided in this Agree- ment shall be performed only by journeymen and apprentices. Apprentices may be employed only in accordance with the ratio of apprentices provided elsewhere in this Agreement. The Employer orally assigned the work in dispute here to employees represented by Typographers in January 1976 and thereafter, by letter dated May 7, 1976, the parties recorded their "[prior oral] under- standings with respect to operations and jurisdiction" of the Spartan camera. They agreed that operation of the Spartan camera would be assigned to employees represented by Typographers subject to the following conditions: (1) A Camera Classification will be established and will operate as a separate classification of the composing room for the purpose of selection of slide days, vacation, and personal holidays. (2) The foreman in charge of the operation of such cameras need not be a member of the Union and shall not be precluded from the performance of work in the Camera Classification. (3) These conditions will remain in effect until March 1, 1979, at which time they will be subject to further negotiations between the parties. The Employer is also a party to a current collective- bargaining agreement with Pressmen. While this agreement does not describe the type of work covered therein, it nevertheless contains the job classification "artist,"9 which classification Pressmen asserts has done work similar to that in dispute here. It is clear that the original collective-bargaining agreement between the Employer and Typographers does not mention camera work, although it does give the latter jurisdiction over all "composing room work." The contracts between the Employer and Typographers, in pertinent part, also provide how- ever, (b) When existing and new types of equipment or processes are to be introduced into the compos- ing room operation, the Publisher will give the Union as much notice as is reasonable, in order to provide an opportunity for qualified journeymen and apprentices to train for its operation. When such equipment or processes are introduced, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad- casting System], 364 U S 573 (1961). a International Association of Machinists, Lodge No. 1743, AFL-CIO (J A. Jones Construction Company), 135 NLRB 1402 (1962) 9 During negotiations, the Employer requested , and Pressmen agreed, to change the classification of camera operator to artist LONG ISLAND TYPOGRAPHICAL UNION NO. 915 19 employees who have demonstrated an aptitude for such work shall be given the first opportunity to attain proficiency in its operation. The collective-bargaining agreement, as modified, does include a camera classification in the composing room. In contrast, the Employer's collective-bargain- ing agreement with Pressmen does not include a jurisdictional clause, although it does include the classification of "artist." This classification, however, only did "similar" work, at best, to that in dispute here, even according to Pressmen. Upon examination and analysis of the pertinent provisions of the two contracts, we conclude that the factor of collective- bargaining agreements favors the Employer's assign- ment to employees represented by Typographers. Pressmen is certified by the Board in a unit of all editorial department employees. That certification does not expressly cover the work in dispute here, however, nor employees performing that work, and we find it does not favor the assignment of the work in dispute here to employees represented by Press- men. 2. Company and industry practice The Employer had contracted with Garden for the production of veloxes. At the time of the hearing, the Employer had not yet assimilated 1 percent of the work being performed by Garden. As noted above, some veloxes were produced in the editorial art department by the use of the Kenro and Robertson cameras, the amount varying from 2 percent to 5 percent of the total number of veloxes appearing in the newspaper. In view of the substantiality of the work in dispute being performed by an outside firm, we find that the factor of the Employer's practice is not helpful in making our determination. The record discloses that members of Typographers operate cameras in other companies in the area. However, these companies do not use the Spartan camera, and we find this factor favors neither employees repre- sented by Typographers nor employees represented by Pressmen. 3. Skills, efficiency, and economy of operation There are currently nine compositors represented by Typographers who are in training to operate the Spartan cameras. There is a one-shift operation which will later be expanded to all shifts. The training program has included a fairly concentrated program 10 After submission of briefs herein, Pressmen and the Employer submitted letters to the Board regarding the transfer of an employee within the editorial department Pressmen asserts that it was advised that the employee's job was being phased out because of insufficient work In response, the Employer contends that the employee was transferred within in densitometer, sensitometry, camera procedure, automated processing, contacting, negative tag, and stripping. The individuals selected have basically no experience in photographic production as it would be difficult to train individuals with experience in operation of the Kenro or Robertson because they have certain prejudices regarding the operation of cameras. The record evidence shows that if the Spartan cameras were placed in the editorial art department, nine additional employees would have to be hired at a cost of approximately $200,000 per year. The Spartan cameras will eventually perform all work that has been, and is being, performed by Garden. However, there will be no loss of jobs in the editorial art department.10 In determining the placement of the Spartan camera, one factor considered by the Employer was that the camera be located within or close to the workflow area with control in the hands of the production department. Typographers collective-bar- gaining agreement contains a job security clause. If no work was available on the Spartan camera, employees represented by Typographers could be used in their journeyman status at pasteup, proof- reading, markup, etc., jobs in the composing room. We therefore find that the factors of skills, efficiency, and economy of operation favor the Employer's assignment to employees represented by Typogra- phers. 4. Employer assignment and preference The Employer has assigned the work in dispute to employees represented by Typographers and we find this factor favors an award to the employees repre- sented by Typographers. Conclusion Upon the record as a whole, and after full consider- ation of all relevant factors involved, we conclude that employees who are represented by Typographers are entitled to perform the work in dispute. We reach this conclusion based on the Typographers contract, the economy and efficiency of the operation, the skills involved, and the Employer's preference. In making this determination, we are awarding the work in question to employees who are represented by Typographers, but not to that Union or its members. The present determination is limited to the particular controversy which gave rise to this proceeding. the editorial department and that while there may be less camera work in the editorial art department , there would be no loss of jobs because of the assignment of the disputed work to employees represented by Typographers The submissions by the Employer and Pressmen do not affect our decision herein 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DETERMINATION OF DISPUTE Employees of Newsday, Inc., who are represented by Long Island Typographical Union No. 915, International Typographical Union, AFL-CIO, are entitled to perform the operation of the Spartan III reproduction camera in Newsday's place of business at 550 Stewart Avenue, Garden City, New York. 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 makes the following Determination of Dispute: