New York Typographical Union No. 6

NEW YORK TYPOGRAPHICAL UNION NO. 6 New York Typographical Union No. 6, International Typographical Union, AFL-CIO and New York News, Inc. and Local Union No. 3, Internation- al Brotherhood of Electrical Workers, AFL- CIO. Case 2-CD-612 September 30, 1980 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELI1O This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by New York News, Inc., herein called the Employer, alleging that New York Ty- pographical Union No. 6, International Typo- graphical Union, AFL-CIO, herein called Typo- graphical Union, 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 Local Union No. 3, In- ternational Brotherhood of Electrical Workers, AFL-CIO, herein called Local 3. Pursuant to notice, a hearing was held before Hearing Officer Paul Rickard on July I and 15, 1980. All parties appeared' and were afforded full opportunity to be heard, to examine and cross-ex- amine witnesses, and to adduce evidence bearing on the issues. 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: 1. THE BUSINESS OF THE EMPI.OYER The record shows that the Employer, a New York corporation with its principal place of busi- ness in New York City, is engaged in the publica- tion of the New York News, a daily and Sunday newspaper of general circulation. During the past year, in the course and conduct of its business operations, the Employer derived gross revenues in excess of $200,000 and purchased I Counsel for Local 3 appeared "specially" where he argued the "threshold question" of hether or not the Board has jurisdiction in the dispute, stated that he was not appearing "with respect to the merits of who is entitled to perform the work," submitted a decision rendered by an impartial umpire under the AFL-CIO Internal Disputes Plan favoring Local 3, and then left the hearing 252 NLRB No. 90 goods and supplies valued in excess of $50,000 di- rectly from sources outside the State of New York. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2 II. THE I.ABOR ORGANIZATIONS INVOLVED The record shows that New York Typographical Union No. 6, International Typographical Union, AFL-CIO, and Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, exist for the purpose of dealing with various em- ployers with respect to wages, hours, and other terms and conditions of employment. We find, therefore, that New York Typographical Union No. 6, International Typographical Union, AFL- CIO, and Local Union No. 3, International Broth- erhood of Electrical Workers, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute In 1956 the Employer began to automate certain facets of its printing process and to introduce modern technology into the composing room func- tions. The Electronic Publishing System was com- pleted in January 1979, and its maintenance and service was assigned to members of the Typo- graphical Union. On November 2, 1979, Local 3 protested this as- signment to the Employer, and, on December 12, 1979, requested arbitration of the jurisdiction of the work. On January 10, 1980, the Typographical Union informed the Employer that it would take whatever action proved necessary to protect its job jurisdiction. On January 14, 1980, the Employer in- formed the Typographical Union of Local 3's arbi- tration request, and invited it to participate. On January 18, 1980, Bertram Powers, president of Typographical Union Local 6, informed the Em- ployer by letter that Local 6 would not participate in any arbitration, and threatened to take strike action to protect its work jurisdiction. The Employer thereafter filed the charge in this proceeding. B. The Work in Dispute The work in dispute involves the service, main- tenance, and repair of the equipment comprising the Electronic Publishing System, located in the 2 N i rA .\Yo r spape r Printing Premani Union .No 2 .\ew };'or .Yn . tlm.), 249 NI.RH I284 I( l98ti 553 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sixth floor composing room and the seventh floor editorial department of the Employer's facility lo- cated at 220 East 42d Street, New York, New York. C. The Contentions of the Parties The Employer contends that there is reasonable cause to believe that the Typographical Union vio- lated Section 8(b)(4)(D) of the Act, and that the dispute is properly before the Board, and further contends that the work in dispute should be award- ed to employees represented by the Typographical Union who presently are assigned to perform the disputed work based on their skills and training, the Typographical Union's contractual jurisdiction, economy and efficiency of operations, job impact, and the Employer's preference and assignment. The position of the Typograhical Union is basically consistent with that taken by the Employer. The position of Local 3 is that the Board does not have jurisdiction of this matter because (1) no genuine 8(b)(4)(D)(ii) threat occurred, and (2) the parties have agreed upon other methods for a vol- untary adjustment. 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. It is clear that the Typographical Union threat- ened economic action, both orally and by letter, in- cluding a strike, to protect its claim to the mainte- nance, service, and repair of the Electronic Pub- lishing System, and refused to participate in the ar- bitration of the dispute. There is no evidence in the record to support Local 3's assertion that this threat was anything but genuine. Under settled Board policy, reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred exists even if a labor organization which represents em- ployees who are assigned the disputed work puts improper pressure upon an employer to continue such assignment.3 At the hearing, Local 3 sought to introduce a decision of an AFL-CIO umpire dated June 26, 1980, rendered under the AFL-CIO Internal Dis- putes Plan to which both Unions are bound and in which he determined that the acts of the Interna- tional Typographical Union with respect to the "electrical maintenance, installation, and repair : Sreoryperv and Elctrotypers LUnion,. Denver Local 13 (The Den ,rr Posti, 246 NI.RB N No 117 (1979) work on the Mergenthaler electronic equipment at the New York News" constitute violations of arti- cle 20 (new AFL-CIO constitution), section 3. The document was rejected at the hearing because it was not properly authenticated. Local 3, in its brief, urges that the Board take judicial notice of the document's authenticity. We find it unnecessary to rule upon this request since there is no evidence that the Employer agreed to submit disputes to the Internal Disputes Plan, and neither the Employer nor Typographical Union Local 6 participated in that proceeding. Additionally, the impartial um- pire's award was not decided on the criteria on which we rely in 10(k) proceedings. International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (Metromedia, Inc.), 225 NLRB 785, 788 (1976). Based on the foregoing, and the record as a whole, we find that the parties have not agreed upon a method for the voluntary adjustment of the dispute and that there is reasonable cause to believe that an object of the action of the Typographical Union was to force the Employer to continue to assign the disputed work to employees represented by the Typographical Union, and that a violation of Section 8(b)(4)(D) has occurred. Accordingly, we find that the dispute is properly before the Board for determination under Section 10(k) of the Act and, therefore, we hereby deny Local 3's motion to dismiss the instant proceeding. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to relevant factors. 4 The Board has held that its determination in a ju- risdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case.5 The following factors are relevant in making the determination of the dispute before us: 1. Skills and training The record reveals that the employees represent- ed by theTypographical Union have performed this work since January 1979. Since 1954 they have been doing composing room functions, and have been doing electronic maintenance work, including photocomposition and producing newspapers by photographic and electronic methods since 1956. 4 N.L.R.B. v. Radio & lileion Broadcast Engineers Union, Local 1212, International Brotherhood o Electrical orkers, AFL-CIO Colum- hia roadcaiing System), 364 U S. 573 (1961) Intelrntionioal Association of Machi,is. L.odge No. 1743. AFL-CIO i. A. Jlone (Contiruction (Companv)i. 135 NLRB 1402 (19t2). 554 NEW YORK TYI'OGRAPIllCAL UNION NO. 6 They have been trained both within and without the Employer's facility in the operation of the Electronic Publishing System, and have undergone special training in maintenance and servicing of the system. Local 3 contends that the employees it rep- resents possess the requisite skills necessary to per- form the work involved, but presented no evidence in support of its claim. We find that the factor of skill favors an award of the work in dispute to em- ployees represented by the Typographical Union. 2. 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. Consequently, Board certifications are not a factor in resolving this dispute. The Employer cur- rently has collective-bargaining agreements with both the Typographical Union and Local 3. The Employer has set forth the pertinent section of its contract with Local 3 which describes the Union's jurisdiction as including "the work of or work nec- essary to or connected with maintenance, servicing, or repairing, relocation, extension or repairs or sub- stitution of our addition to electrical and electronic wiring apparatus or equipment." The Typographi- cal Union's contract covers "composing room work, all phototypesetting machines (and comput- ers)-when the computer is performing composing room work-and maintenance of all of the forego- ing equipment and devices." Neither contract clearly covers all of the work in dispute, and both present equally legitimate claims to maintenance and servicing of the Employer's electronic equip- ment. Accordingly, we find that the factor of col- lective-bargaining contracts does not favor an as- signment to the employees in either unit over the other. 3. Economy and efficiency of operation and job impact The record shows that employees represented by the Typographical Union have operated as well as maintained and serviced the system since it was in- stalled pursuant to their special training for these duties and that they are employed in the same loca- tion and have had the experience of working to- gether as a team. Inasmuch as these employees have composing skills and experience, they have an obvious advantage in ability to diagnose malfunc- tions in the equipment. Should such work jurisdic- tion be transferred to employees now fully em- ployed who are represented by Local 3, it would require the hiring of at least 28 to 30 additional em- ployees, with a training period of 12 to 18 months. The Employer's general foreman of the composing room testified, without contradiction, that there are no employees represented by Local 3 with suffi- cient background and training to presently handle this work. The record further shows that the hiring of additional employees would result in the under- utilization of employees represented by the Typo- graphical Union because those employees have life- time job guarantees arising from the installation of the electronic equipment. Accordingly, we find that the factors of econo- my, efficiency of operation, and job impact favors an award of the work in dispute to the employees represented by the Typographical Union. 4. Employer assignment and preference The Employer has assigned the work in dispute to its employees represented by the Typographical Union and prefers that assignment. This factor favors an award of the work to those employees. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors, we conclude that employees who are represented by New York Ty- pographical Union No. 6, International Typo- graphical Union, AFL-CIO, are entitled to per- form the work in dispute based on their superior skills and training, economy and efficiency of oper- ation, job impact, and employer preference and as- signment. In making this determination, we are awarding the work in dispute to employees who are represented by New York Typographical Union No. 6, International Typographical Union, AFL-CIO, but not to that Union or its members. This determination is limited to the particular con- troversy which gave rise to this dispute. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing facts and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: Employees of New York News, Inc., who are currently represented by New York Typographical Union No. 6, International Typographical Union, AFLCIO, are entitled to perform the maintenance, servicing, and repairing of the equipment compris- ing the Electronic Publishing System located in the sixth floor composing room and the seventh floor editorial department of the Employer's facility lo- cated at 220 East 42d Street, New York. New York. 555