International Printing & Graphic Communications Union, Local 51, AFL-CIO (Format Printing Company, Inc.)

INTL. PRINTING & GRAPHIC COMMUNICATIONS. LOCAL 51 International Printing & Graphic Communications Union, Local 51, AFL-CIO' and Format Print- ing Company, Inc.2 and New York Typographi- cal Union No. 6. Case 22-CD-386 January 12, 1983 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by the Format Printing Compa- ny, Inc., herein called the Employer, alleging that International Printing & Graphic Communications Union, Local 51, AFL-CIO, herein called Re- spondent or the Printers, had violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing or requir- ing the Employer to assign certain work to its members rather than to employees represented by New York Typographical Union No. 6, herein called the Typographers. Pursuant to notice, a hearing was held before Hearing Officer Patrick McDermott on September 24, 1982. 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 filed a brief. 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 rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: I1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer is a Delaware corporation engaged in the business of manufacture, sale, and distribution of business forms at its Totowa, New Jersey, facility, the only facility involved herein. During the pre- ceding 12 months, the Employer derived gross rev- enue in excess of $50,000 from the sale and distri- bution of its products directly to customers located outside the State of New Jersey. We find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that The name of the Respondent appears as amended at the hearing. a The name of the Employer appears as amended at the hearing. 266 NLRB No. 2 it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED Based on the record as a whole, we find that In- ternational Printing & Graphic Communications Union, Local 51, AFL-CIO, and New York Typo- graphical Union No. 6 are labor organizations within the meaning of Section 2(5) of the Act.3 111. THE DISPUTE A. The Work in Dispute The work in dispute is cameraman/stripper work in the Employer's pre-press department. B. Background and Facts of the Dispute In the early 1960's the Employer utilized flexo- graphic and letterpress printing processes and a "hot-type" composing room. Its composing room employees were represented by the Typographers. 4 Its printers were, and continue to be, represented by the Printers. In about 1967, the Employer began to convert to a web-offset printing process which used lithographic plates and the hot-type compos- ing work was phased out. As their work decreased, the two composers, Behr and Roe, were assigned plate filing, supply ordering, and other noncompos- ing duties. In the early 1970's, the Employer purchased a camera and related equipment in order to make its own negatives for platemaking. It reassigned Behr and Roe to operate the camera and "strip" the neg- atives, that is, prepare them for the platemaking process. Roe quit in 1973 and, upon the Employer's request, the Typographers referred a member, Woodman, as a replacement. In 1975, Woodman was discharged and the Employer again requested 3 In this regard, the record reveals that the Printers has a collective- bargaining agreement with the Employer and that some of the Employ- er's employees belong to the Printers. Similarly, the Typographers has a collective-bargaining agreement with the Printers League Section of Printing Industries of Metropolitan New York, Inc., and, until recently, at least one of the Employer's employees was a member of the Typogra- phers. It is thus apparent that employees participate in both the Printers and the Typographers and that they exist, at least in part, for the purpose of dealing with employers concerning wages, hours, working conditions, etc., of employees. Moreover, we note that the Board has previously found that the Typographers is a labor organization within the meaning of Sec. 2(5) of the Act See New York Typographical Union No. 6, AFL- CIO (Arnnrype, Inc), 213 NLRB 925 (1974). ' When it left the Typographers jurisdiction when it moved its facility to New Jersey at the end of 1966, the Employer signed an agreement to continue to recognize the Typographers "as exclusive representative of all composing room employees under the terms of the contract between Printers League Section and New York Typographical Union No. 6." While the Employer did not negotiate with the Typographers nor ex- ecute a collective-bargaining agreement with the Typographers, it contin- ued to pay current wage rates and benefits and otherwise implement the Typographers contract with respect to its employees who were members of the Typographers. 7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a Typographers replacement. The Typographers, however, did not refer anyone. The Employer then assigned employee Brouillard, a member of the Printers, to assist Behr. 5 Behr notified the Employ- er in 1979 or 1980 that he intended to retire at the end of 1981. The Employer thereafter provided Brouillard with intensive training so that he could assume Behr's full duties upon the latter's retire- ment. 6 Brouillard replaced Behr, as planned, in January 1982. At that time, the Employer decided it needed only one cameraman/stripper. It also de- cided to train one of its other Printers employees on a part-time basis as a backup for periods when Brouillard was temporarily unavailable. In February 1982, the Typographers complained that the Employer had not hired one of its mem- bers to replace Behr. When the Employer contin- ued to refuse to do so, the Typographers filed an arbitration request pursuant to its contract with the Printers League Section, to which it asserted the Employer was bound. The Employer appeared at the arbitration hearing under protest and argued that it did not have a contract with the Typogra- phers and that, even if it did, the contract did not cover the work in dispute.7 The arbitrator found that the Employer was bound to the Typographers/Printers League Section collective- bargaining agreement and ordered that the cameraman/stripper work be assigned to a member of the Typographers. When the Employer received a copy of the arbi- trator's award, it notified Brouillard and the Print- ers steward. The next day, the Printers president, Seide, in a telephone conversation with the Em- ployer's president, stated that the cameraman/stripper work was within the Printers jurisdiction, that a Printers member had been per- forming the work for years, and that, if Brouillard were replaced, he, Seide, would "pull the whole damn shop." C. Contentions of the Parties The Employer contends that its collective-bar- gaining agreement with the Printers covers the work in dispute, that it would be inefficient to train an outside employee to perform the highly skilled work and that assignment of the work to a Printers member would be consistent with its own past practice, its preference, and area practice. It also asserts that it has no contract with the Typogra- phers and that the Typographers waived any right 5 At no time did the Typographers complain to the Employer about Brouillard's assignment to assist Behr. 6 This intense training was required because the Employer's processes are more sophisticated and more complicated than regular camera and stripping work. I The Printers did not participate in the arbitration hearing. it may have had to the work by failing to refer a replacement for Woodman or to protest Brouil- lard's assignment to the work in 1975. The Printers contends that the work in dispute should be assigned to its member because the member has been performing the work for a number of years and was trained specifically to take over the position. The Typographers asserts that it has a contract with the Employer which covers the work in dispute and that since the work was previously performed by one of its members it should continue to be so assigned. 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 dis- pute. As noted above, the Printers threatened adverse economic action against the Employer should the Employer reassign the work to an employee not represented by it. Under settled Board policy, rea- sonable cause to believe that a violation of Section 8(b)(4)(D) has occurred exists if a labor organiza- tion, which represents employees who are assigned the disputed work, puts improper pressure upon an employer to continue such assignment.8 Based on the foregoing, and the record as a whole, we find that there is reasonable cause to believe that an object of the Printers action was to force the Em- ployer to continue to assign the disputed work to an employee represented by the Printers and that therefore a violation of Section 8(b)(4)(D) has oc- curred. No party contends, and the record contains no evidence showing, that there exists an agreed-upon method for the voluntary adjustment of this dispute which is binding on all the parties. Accordingly, we find that this dispute is appropriate for resolu- tion by the Board 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 disputed work after giving due consideration to various factors.9 As the Board has frequently stated, the determination in a jurisdictional dispute case is an act of judgment 8 See, e.g., International Association of Machinists and Aerospace Work- ers. AFL-CIO., District Lodge No. 7 (Joseph E. Seagram & Sons, Inc.), 198 NLRB 407 (1972). 9 N.L.R.B. v. Radio and Television Broadcast Engineers Union. Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Colum- bia Broadcasting System], 364 U.S. 573 (1961). 8 INTL. PRINTING & GRAPHIC COMMUNICATIONS, LOCAL 51 based on commonsense and experience in weighing these factors. The following factors are relevant in making a determination of the dispute before us. 1. Certifications and collective-bargaining agreements Neither of the Unions involved herein has been certified by the Board as the collective-bargaining representative for a unit of the Employer's employ- ees. There is no dispute that the Employer has a collective-bargaining agreement with the Printers. The pertinent jurisdictional language of this con- tract states that the Printers is recognized as the ex- clusive representative of "all employees in the pressrooms of the [Employer], engaged as printing pressmen as listed in the wage scales contained in this Contract." The agreement also states that "an employee engaged to work in a job classification set forth in this Contract shall be employed in ac- cordance with this Contract." The job classifica- tions of cameraman and stripper are included among those listed in the wage scales of the agree- ment. The Employer denies that it has a collective-bar- gaining agreement with the Typographers. The Ty- pographers asserts, to the contrary, that the Em- ployer is bound by the Typographers/Printing League Section contract. This contention is grounded on the agreement, executed by the Em- ployer in late 1966 or early 1967, in which it recog- nized the Tyographers as the exclusive representa- tive of its composing room employees and agreed to be bound by the Typographers contract. The Typographers also argue that by continuing to apply the terms and conditions of its current con- tract to Behr, the Employer has manifested an intent to be bound by the agreement. The jurisdiction section of the Typographers agreement states that it covers: . . . all composing room work . . . and in- cludes . . . paste make-up of all type, hand-let- tered, illustrative, border ruling, photo-proof- ing, correction, alteration and imposition of the paste make-up serving as the completed copy for the camera, used in the platemaking process. The jurisdiction section also contains the following paragraph: Offset Operations The work involved in the operation of the camera used in the platemaking process, opa- quing, imposition stripping and platemaking operations shall be covered in a separate agreement for wages, hours and working con- ditions. This agreement shall be for those em- ployers who recognize by separate signature New York Typographical Union No. 6 as rep- resentative of its employees engaged in such work. Contrary to the Typographers contentions, we find that the 1966-67 recognition agreement cover- ing the composing room employees lapsed when the Employer ceased performing hot-type compos- ing work. We also find that the initial jurisdictional statement quoted above does not cover the cameraman/stripper work. On its face it describes "paste-up" work, that is, the preparation of materi- al to be photographed. We note that the Employ- er's president testified without contradiction that the Employer did not engage in "paste-up" work. In addition, we find that the paragraph denoted "Offset Operations" accurately describes the work in dispute. Thus, since the Employer did not enter into a separate agreement covering its camera- man/stripper work, the Typographers agreement by its own terms specifically excludes the work in dispute. In light of the above, we find that the Em- ployer's application of the contract terms and con- ditions to Behr does not manifest an intention to adopt the Typographers agreement.1 0 We find that the Printers contract with the Em- ployer specifically covers the work in dispute and that there is no collective-bargaining agreement be- tween the Employer and the Typographers. Ac- cordingly, we find that the factor of collective-bar- gaining agreements favors an award of the work in dispute to employees represented by the Printers. 2. Arbitration award As indicated above, the Typographers requested arbitration regarding its claim to the work in dis- pute. The Employer attended the arbitration hear- ing under protest, contending, inter alia, that it did not have a contract with the Typographers. The Printers did not participate in the arbitration hear- ing. Thus, all parties did not participate in the arbi- tration hearing or agree to be bound by the results thereof. Accordingly, we give no weight to the ar- bitrator's award of the work in dispute to the Ty- pographers.11 'o We give no weight to the arbitrator's conclusion that the Employer was a party to the Typographers/Printers League Section contract since the Employer attended the arbitration hearing under protest and did not agree to be bound by the arbitrator's award. See, generally. Spielberg .anufacturing Company, 112 NLRB 1080 (1955). t See International Die Sinkers' Conference and Detroit Die Sinkers' Lodge No. 110 (General Motors Corporation), 197 NLRB 1250 (1972) 9 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Employer past practice The Employer's past practice does not reveal a consistent assignment of the work in dispute to either group of employees. Thus, for the first sev- eral years of the Employer's camera operation, both cameraman/strippers were represented by the Typographers; from 1975 through 1981, the Ty- pographers and the Printers each represented one employee. We find, therefore, that the factor of the Employer's past practice is not determinative of the instant dispute. 4. Employer present assignment and preference Since January 1982, the Employer has assigned an employee represented by the Printers to the cameraman/stripper work. At the hearing and in its brief, the Employer has expressed its preference that the disputed work continue to be performed by employees represented by the Printers. While we do not afford controlling weight to these fac- tors, we find that they tend to favor an award of the work in dispute to employees represented by the Printers. 5. Industry practice The significance of industry practice here de- pends on how the Employer's industry is defined. Thus, the record reveals that, of the few unionized business form printers in the area, the Printers rep- resents the employees performing the disputed work. The Typographers, however, does represent employees engaged in cameraman/stripper work for employers who print materials other than busi- ness forms. We find that the record evidence is in- sufficient to determine with any certainty the rele- vant industry with which to compare the Employ- er. We, therefore, find that this factor does not favor an award to either group of employees. 6. Relative skills The evidence here shows that the Employer's camera and negative stripping operation is more so- phisticated and more complex than the similar op- erations of other printer employers. The employee represented by the Printers who is presently per- forming this work received between 1 and 2 years of intensive training so that he could replace a re- tiring employee, who had been represented by the Typographers. There is no evidence that any em- ployee represented by the Typographers possesses the requisite skills to perform the work at this time. We find that this factor favors assignment of the disputed work to employees represented by the Printers. 7. Economy and efficiency of operations The Employer has invested considerable time and money in the training of the employee present- ly performing all the work in dispute. It estimates that a new employee represented by the Typogra- phers, who had experience as a cameraman/- stripper, would require a year of training to per- form the Employer's work properly. Thus, if a new employee had to be brought in and trained, the Employer would lose its investment in the current employee and its entire printing operation would be hampered during the training period. In addi- tion, if the work is awarded to employees repre- sented by the Printers, the Employer will be able to train another of its Printers-represented employ- ees to cover for the current employee's absences. On the other hand, if the work is awarded to em- ployees represented by the Typographers tempo- rary replacements, presumably unfamiliar with the Employer's operations and untrained in the work in dispute, would have to be obtained through the Typographers. Therefore, we find that economy and efficiency of operations favors an award of the disputed work to employees represented by the Printers. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved we con- clude that employees represented by the Printers are entitled to perform the work in dispute. We reach this conclusion based on the Employer's cur- rent collective-bargaining agreement with the Printers; the Employer's present assignment, which is not inconsistent with its past practice or with in- dustry practice in the area; the skills and training possessed by the employee represented by the Printers; and economy and efficiency of operations. In making this determination, we are assigning the disputed work to employees currently repre- sented by the Printers, but not to the Printers or to its members. Our present determination is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing factors and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: Employees of Format Printing Company, Inc., at its Totowa, New Jersey, facility who are currently represented by the International Printing & Graph- ic Communications Union, Local 51, AFL-CIO, o10 INTL. PRINTING & GRAPHIC COMMUNICATIONS, LOCAL 51 II1 are entitled to perform the work of cameraman/- stripper in the Employer's pre-press department. I