The Brockton Newspaper Guild

BROCKTON NEWSPAPER GUILD (ENTERPRISE PUBLISHING) The Brockton Newspaper - Guild and Enterprise Pub- , lishing Co. The Newspaper Guild of Salem and The Salem News Publishing Company. Cases 1-CD-735 and 1- CD-736 - 12 April 1985 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The charge in Case 1-CD-736 of this Section 10(k) proceeding' was filed 26 November 1984 by the Employer, The Salem News Publishing Com- pany, alleging that the Respondent, The Newspa- per Guild of Salem (Guild), threatened to violate Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to em- ployees represented by Lynn Typographical Union, No. 120 (Local 120). The hearing was held 8 and 9 January 1985 before Hearing Officer Gerald Wolper. The Board affirms- the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. - 1. JURISDICTION The Employer, a Massachusetts corporation, publishes a daily newspaper at its Salem, Massa- chusetts facility, where its annual gross business volume exceeds $200,000. The Employer subscribes to interstate news features, publishes nationally syn- dicated features, and. annually receives goods and materials, including newsprint, valued in excess of $50,000 directly from points located outside the Commonwealth of Massachusetts. The parties stip- ulate, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Guild and Local 120 are labor organizations within the meaning of Section 2(5) of the Act. . II. THE DISPUTE A. Background and Facts of Dispute The Employer is a party to separate collective- bargaining agreements with Local 120 and the ' In Case I-CD-735, Brockton Typographical Union, No 224,' the in- terested union, unequivocally disclaimed interest in the disputed work at the hearing Accordingly, the Charging Party, Enterprise Publishing Co, filed 'a request to withdraw the charge in Case 1-CD-735, which request the hearing officer referred to the Board for ruling We approve Enter- prise's request to withdraw the charge in Case 1-CD-735 135 Guild; both agreements are effective from 1 Octo- ber 1982 through 30 September 1985. Local 120 represents the Employer's composing room em- ployees and the Guild represents employees in sev- eral of the Employer's departments, including the editorial and advertising departments. Each collec- tive-bargaining agreement contains a jurisdictional provision and grievance and arbitration provisions covering "all disputes" or "any matter" regarding the construction or application of the agreement. On 10 July 19842 the Employer notified Local 120 of its intent to introduce electronic equipment for the layout and design of its pages. The Employ- er thereafter met with representatives of Local' 120 on two occasions in July and August during which Local 120 claimed jurisdiction over operation of the equipment. The parties did not reach a work- assignment agreement during the discussions. • • Local 120 and the Employer next met on 16 Oc- tober during which the Employer provided Local 120 with information on the Hastech terminals it intended to purchase for full-page layout and design. The Employer also provided information on software for advertising and news text prepara- tion and layout that could be used with the Has- tech equipment.. The parties again did not reach agreement. On 23 October the Employer notified the Guild of a "potential jurisdictional problem" it had with Local 120 concerning the Hastech terminal oper- ation "in the Editorial Department." The Employ- er stated it intended to assign the work to employ- ees represented by the Guild. The Guild's regional organizing director, Gerald M. Maraghy, wrote the Employer on 4 November stating'that operation of the equipment in the edito- rial department was within the Guild's jurisdiction. Maraghy further stated: "Should the Publisher take any action to dilute, transfer or denigrate in any way this work, the Guild will pursue all available remedies." By 8 January 1985 the Employer had installed Hastech full-page layout terminals in its newsroom for operation by editorial department employees. The terminals were not, yet being used daily, but the Employer. expected to begin doing so within a few weeks. No terminals had been installed in the advertising department by that time.. -Neither the Guild nor Local 120 engaged in a strike or picketing with an object of forcing or re- quiring the Employer to assign the work to em- ployees it represented. Nor did either explicitly threaten to do so. 2 All dates are 1984'unless otherwise specified 275 NLRB No. 22 • 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Work in Dispute The amended notice of hearing stated that the disputed work involved the operation of full-page layout terminals . At its 16 October meeting, the Employer provided Local 120 with information re- garding possible use of the equipment for both ad- vertising and editorial layout . Local 120's secre- tary-treasurer testified at the hearing that Local 120 claimed that use of the equipment for both ad- vertising and editorial layout was within Local 120's jurisdiction . The Guild, however, by its 4 November letter, contended only that use of the equipment in the Employer's editorial department was within the Guild's jurisdiction.3 Only Local 120, and not the Guild, objected at the hearing to introduction of evidence regarding use of the equipment in the Employer's advertising depart- ment. By the time of the hearing , the Employer had installed the equipment in its editorial depart- ment, but not its advertising department. Local 120 asserts that only use of the equipment in the Employer's editorial department is properly before the Board . It further asserts that a decision on use of the equipment in the advertising depart- ment would be premature and prejudicial . The Em- ployer asserts that the work in dispute is not limit- ed to use of the equipment for editorial layout. Because we find below there is no reasonable cause to believe Section 8(b)(4)(D) of the Act has been violated, we need not determine the scope of the work in dispute. C. Contentions of the Parties The Employer and the Guild contend there is reasonable cause to believe the Guild threatened to violate Section 8(b)(4)(D) of the Act based on its 4 November threat to "pursue all available remedies" should the Employer dilute , transfer, or denigrate operation of the Hastech full-page layout equip- ment by editorial department employees . The Em- ployer and the Guild further assert that the Board should award the disputed work to employees rep- resented by the Guild based on the Employer's col- lective-bargaining agreement with the Guild, econ- omy and efficiency of the Employer 's operation, the skills possessed by Guild-represented employ- ees, the Employer's past practice and preference, and the lack of job impact that would be caused thereby . The Guild also asserts that industry prac- tice does not favor an award to Local 120-repre- sented employees. Local 120 contends there is no reasonable cause to believe the Guild threatened to violate Section 3 As noted, the Employer, by its 23 October letter, informed the Guild only that terminals would be installed "in the Editorial Department " 8(b)(4)(D) of the Act. It further asserts, should the Board find there is reasonable cause, the Board should award the disputed work to employees Local 120 represents based on the nature of the work, its collective-bargaining agreement with the Employer, and the Employer's past practice. It also asserts that economy and efficiency of operation, relative employee skills, and industry practice do not favor an award to Guild-represented employ- ees. 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 there is reasonable cause to believe Section 8(b)(4)(D) of the Act has been vio- lated . The Employer and the Guild contend that the Guild's threat to "pursue all available reme- dies" in the event the Employer reassigned full- page layout terminal operation from editorial em- ployees violated Section 8(b)(4)(D).4 A threat to engage in concerted or other activity to force or require an employer to reassign disput- ed work violates Section 8(b)(4)(D).5 Absent evi- dence of other threats , restraint, or coercion, how- ever, a threat merely to file a grievance or invoke arbitration in pursuit of an arguably meritorious contractual claim does not violate the Act.6 The Guild's threat does not explicitly refer to any spe- cific conduct and no evidence was presented re- garding the context in which the threat was made, or concerning the relationship of the parties, which would reasonably indicate that a threat of prohibit- ed activity was intended.7 The collective-bargain- 4 The Guild did not threaten the Employer regarding reassigning the work from advertising department employees 5 Broadcast Employees NABET Local 16 (American Broadcasting Co.), 227 NLRB 1462, 1463-65 (1977) 6 See Lithographers & Photoengravers Local 23P (News Publishing Co.), 167 NLRB 958, 959-960 (1967) (threat reasonably interpreted as referring to action under grievance-arbitration procedures did not provide reasona- ble cause for 10(k) proceeding), Sheet Metal Workers Local 49 (Los Alamos Constructors), 206 NLRB 473, 475-477 (1973) (threat to file a grievance and initiate Sec 301 proceeding to enforce jurisdictional provi- sions of collective-bargaining agreement did not violate Sec 8(b)(4)(D), claim was at least arguably meritorious and there was no extrinsic evi- dence of other threats, restraint, or coercion) Compare Millwrights Local 102 (Meiswinkel Interiors), 260 NLRB 972, 973-974 (1982) (grievances over work assignment violated Sec 8(b)(4)(D), no collective-bargaining agreement or prehire agreement existed, grievances were solely to force assignment, other evidence of coercion present) 7 See Machinists (Carling Brewing Co), 136 NLRB 1216, 1218-20 (1962) ("the company need not worry about a threat from the [Firemen & Oilers], because the [Firemen & Oilers] would certainly take such action it deemed necessary if the company tried to assign the work to the [Machinists]" held not to provide reasonable cause for 10(k) proceeding, Firemen & Oilers were assigned the disputed work and other circum- stances indicated amicable relationship with employer) Cf Operating En- gineers Local 106 (E C Ernst, Inc), 137 NLRB 1746, 1751-52 (1962) (Electrical Workers shop steward's statement "Try it and see" or "Let's try it and see," in response to whether Operating Engineers could per- form disputed work, held too ambiguous to support finding of reasonable cause for 10(k) proceeding) BROCKTON NEWSPAPER GUILD (ENTERPRISE PUBLISHING) 137 ing contract's grievance and arbitration provision, to which the Guild and the Employer agreed, however, arguably covers the dispute and thus po- tentially provides at least one lawful remedy rea- sonably implied by the Guild's threat." Under these circumstances, we find there is no reasonable cause to believe Section 8(b)(4)(D) has been violated. Therefore, we find the Board is without authority to determine this dispute. Ac- cordingly, we shall quash the amended notice of hearing. 8 See News Publishing Co, supra at 959-960 (threat that union "would take appropriate action" reasonably interpreted as referring to action under grievance-arbitration procedures) ORDER The amended consolidated notice of hearing is quashed.