Columbia Typographical Union 101

172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Columbia Typographical Union No. 101, affiliated with International Typographical Union, AFL- CIO and The Washington Post Company and Graphic Arts International Union, Local No. 285. Case 5-CD-260 August 14, 1980 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, PENELLO, AND TRUESDALE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by The Washington Post Compa- ny, herein called the Employer, alleging that Co- lumbia Typographical Union No. 101, affiliated with International Typographical Union, AFL- CIO, herein called CTU, 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 Graphic Arts International Union, Local No. 285, herein called GAIU. Pursuant to notice, a hearing was held before Hearing Officer Joseph J. Baniszewski on May 14, 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. Thereafter, all parties filed briefs. 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 ruling 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: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, a Delaware corporation with its principal place of business in Washington, D.C., is engaged in the publication of a daily newspaper in Washing- ton, D.C. During the past year, in the course and conduct of its business operations, the Employer derived gross revenues in excess of $200,000, and regularly printed advertisments of products which are nationally advertised and sold, published na- tionally syndicated articles and news stories, and shipped newspapers to points outside the District of Columbia. The parties also stipulated, and we i The name of this union appears as amended at the hearing. 251 NLRB No. 26 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 1l. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Colum- bia Typographical Union No. 101, affiliated with International Typographical Union, AFL-CIO, and Graphic Arts International Union, Local No. 285, are labor organizations within the meaning of Sec- tion 2(5) of the Act. Ill. THE DISPUTE A. Background and Facts of the Dispute In 1978, as part of a planned conversion from hot type to coldtype, and in anticipation of the opening of a satellite printing plant in Springfield, Virginia, the Employer initiated plans to purchase an EOCOM facsimile machine. The scanner (also known as the reader or sender) component of the EOCOM machine was eventually installed, in early 1980, in the composing room of the Employer's downtown Washington, D.C., building; the receiv- er (also known as the writer) component of the EOCOM machine was installed some 95 feet away in the photoengraving department. The Employer assigned the scanner portion in the composing room to CTU's jurisdiction; the receiver portion was assigned to GAIU's jurisdiction. Only the op- eration of the scanner portion of the EOCOM ma- chine is in dispute in this proceeding. Prior to the installation of the EOCOM machine, composing room employees represented by CTU pasted a copy of each full newspaper page on a copy board (pasteup). The composing department employees then physically transported the pasteup to the photoengraving department where employ- ees represented by GAIU photographed the pas- teup and produced negatives from which printing plates were eventaully made. Under the EOCOM system, the pasteup is man- ually inserted into a drawer of the scanner portion of the EOCOM machine. The scanner component, by means of a laser, scans or "reads" the pasteup. The scanner component then sends a laser image of the pasteup by cable, microwave, or other elec- tronic means, to the receiver or writer component of the EOCOM system. The receiver accepts the laser transmission and produces a negative image of the full newspaper page. The EOCOM system ulti- mately converts the negative to a photosensitized ' The parties agreed that the facts establishing jurisdiction, as reported in 7he Washington Post Comnpany, 237 NLRB 1493 (1978), were accurate. COLUMBIA TYPOGRAPHICAL UNION 101 173 pressplate which becomes the printing plate for the newspaper. 3 The EOCOM system can be installed as a single machine, in which both scanning and receiving/ production-of-negative functions are contained. The Employer, however, has located the two com- ponents of the EOCOM system in different depart- ments on the same floor of its Washington, D.C., building, with the scanner in the composing room under CTU jurisdiction and the receiver in the photoengraving department under GAIU jurisdic- tion. The two components are connected by cable. The Employer is presently building a new printing plant in Springfield, Virginia; the EOCOM system will eventually have another receiver component located at this Virginia plant, which will receive laser impulses by microwave from the scanner component located in the Washington, D.C., com- posing room. The Virginia plant is not to be oper- ational until September 1980. In addition, only cer- tain parts of the daily newspaper published by the Employer are, at this time, produced via the EOCOM system. The Employer still uses the tradi- tional process of photographing a pasteup page (work done by GAIU-represented employees) for much of its daily production. Further, as all the "bugs" have not been eliminated from the EOCOM, traditional photographing is still done when the EOCOM malfunctions. The Employer and GAIU negotiated their most recent collective-bargaining agreement in 1979, just before the EOCOM system was installed. Law- rence Wallace, the Employer's vice president of labor relations, explained the anticipated split as- signment of the two parts of the EOCOM system to GAIU negotiators on at least two occasions prior to the execution of the contract. The GAIU contract specifically refers to the EOCOM scanner or reader. Tony Gonzales, assistant to the president of GAIU and a GAIU negotiator, conceded at the hearing that he understood that the scanner portion of the EOCOM was to be assigned to employees represented by CTU and that specific reason exist- ed for excluding scanners or readers from the con- tract. However, the GAIU negotiators testified that they did not fully understand the nature of the split assignment or the entire EOCOM process prior to its installation. The CTU collective-bargaining agreement was negotiated in 1974, before the Em- ployer anticipated purchasing the EOCOM system and, therefore, makes no reference to it. Following the installation of the EOCOM system and briefings by the Employer's technical staff, 3 At present, the Employer's EOCOM system only produces a nega- tive. The Employer intends to install electronic platemaking equipment in the near future. GAIU steward Burton concluded that the EOCOM scanner was more akin to traditional GAIU work. After meetings between GAIU and Employer representatives, GAIU grieved the Em- ployer's assignment of the scanner portion of the EOCOM to employees other than those represent- ed by GAIU. The grievance worked its way through the Employer-GAIU grievance procedure, and at one point the Employer proposed to both GAIU and CTU that a tripartite arbitration be con- ducted to resolve the assignment of the EOCOM scanner work. CTU, however, refused to partici- pate in tripartite arbitration, and subsequently the Employer refused to engage in bilateral arbitration of the dispute. On April 11, 1980, GAIU initiated a Section 301 suit in the United States District Court for the District of Columbia to compel bilateral ar- bitration of the EOCOM scanner assignment under the terms of GAIU's collective-bargaining agree- ment. 4 No provision exists in either CTU's or GAIU's collective-bargaining agreement for tripar- tite arbitration of disputes. CTU, by letter of April 14, 1980, from its Presi- dent William Boarman to Employer Vice President Larry Wallace, informed the Employer that if any action was taken by the Employer to remove the EOCOM scanner work from CTU's jurisdiction, CTU would take concerted action in response. The Employer thereafter filed the charge in this pro- ceeding. No strike activity or work stoppage has occurred, and the parties have continued to operate the EOCOM system consistent with the Employ- er's original split assignment of the work; i.e., scan- ner to CTU-represented employees, receiver to GAIU-represented employees. B. The Work in Dispute The parties stipulated that the work in dispute involves the operation of the scanner (also known as the reader or sender) portion of he EOCOM system. C. The Contentions of the Parties The Employer and CTU contend that the assign- ment of the scanner portion of the EOCOM system to CTU's jurisdiction is the most fair and efficient method of distributing the work. Both the Employ- er and CTU contend that the assignment is sup- ported on the basis of applicable contract clauses, bargaining history, relative skills, economy and ef- ficiency, job impact, and Board precedent. The Employer and CTU argue that the EOCOM scan- 4 he Employer moved to dismiss the Sec. 301 suit on the grounds that the instant 10(k) proceeding in effect preempted the lawsuit As of the date of the l(k) hearing, GAI! had not filed a reply to the Employ- er's motion to dismiss 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ner is a substitute for the physical transmission of the pasteup page to the photoengraving depart- ment-a task traditionally performed by employees represented by CTU. GAIU claims that its members are entitled to perform the disputed work, citing its collective-bar- gaining agreement, company and industry practice and the relative skills involved. GAIU argues that the EOCOM system is merely a method of nega- tive production employed in place of the camera- a task which has always been assigned to employ- ees represented by GAIU. GAIU has moved to quash the notice of hearing in the present case, claiming that there is no evidence of 8(b)(4)(D) ac- tivity. D. Applicability of the Statute Before the Board may proceed with a determina- tion of a 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. 5 Lawrence Wallace testified that CTU President Boarman informed him over the telephone on or about March 25, 1980, that CTU was not interested in tripartite arbitration and that the reassignment of the scanner's operation to GAIU would make CTU "damn upset" and that they "were not going to stand for that." Boarman advised Wallace by letter dated April 14, 1980, that "[i]f the Post should make a reassignment, Columbia Typographical Union will be forced to take concerted action against your company." GAIU contends that the letter sent to the Employer by CTU is insufficient to establish that the Employer was threatened or coerced by CTU. GAIU relies on the fact that at no time did CTU actually engage in any illegal ac- tivity or specifically threaten to picket or strike. The term "concerted action," as used in labor parlance, can reasonably be interpreted to mean a strike, slowdown, or other economic action. More- over, CTU's post-hearing brief makes it clear that CTU meant to employ economic sanctions, includ- ing a strike, to prevent a reassignment of the dis- puted work. 6 The fact that no strike or other job action actually occurred does not preclude a find- ing that the Employer considered itself threatened s The parties stipulated that there was no method for the voluntary adjustment of the dispute. We note it is irrelevant that the party making the threat is the one presently doing the disputed work. Iniernaional Union of Operating Engi- neers, Local 542. AFL-CIO (CJ Longenfilder and Son. Inc.), 241 NLRB 562 (1979); Hod Carriers' Union Local No. 116, Laborers International Union of North America. AFL-CIO (E. d S. Masonry. Inc.), 187 NLRB 482, 483 (1970). with serious economic harm unless it acquiesced in the Union's demands. Carpenters District Council of Denver and Vicinity (Godwin Bevers Co., Inc.), 205 NLRB 155, 157 (1973). Accordingly, in view of the conduct described above, we find reasonable cause to believe Section 8(b)(4)(D) has been violat- ed and 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 the disputed work after giving due consideration to relevant factors.7 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.8 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements and certifications There are no orders or certifications of the Board awarding jurisdiction of the work in dispute to members of either of the Unions involved in the present proceeding. Both CTU and GAIU have collective-bargaining agreements with the Employer. CTU's contract was negotiated in 1974, before the Employer made plans to purchase the EOCOM and, thus, contains no reference to that system. In addition, the CTU contract has no provision similar to section 57 of the GAIU contract which covers the introduction of new equipment. Section 7-a of CTU's contract does provide: Jurisdiction of the Union and the appropriate unit for collective bargaining is defined as in- cluding all composing room work and includes classifications such as: . . . proofreading and/ or scanner devices .... Although the EOCOM reader is a type of "scan- ning device," it was not within the family of ma- chines traditionally associated with composing room work in 1974, nor was its purchase by the Employer contemplated by the parties in negotiat- ing CTU's collective-bargaining agreement. The GAIU contract was negotiated in 1979 and contains specific references to the EOCOM system. The GAIU contract provides in pertinent part: 7 L.R.B. ;. Radio & Television Broadcast Engineers Union. Local 122, International Brotherhood of Electrical Workers. .4AFL-CIO [Colum- bia Broadcasting System]. 364 U.S 573 (1961) International Association of Machinist. Lodge No. 1743. AFL-CIO (J. A. Jones Consiruction Company), 135 NLRB 1402 (1962). COLUMBIA TYPOGRAPHICAL UNION 101 175 JURISDICTION SECTION 9. The jurisdiction of the Union is . . . all parts of the process pertaining to the production of photoengraving . . . from the copy up to the finished product.... Oper- ation of the EOCOM platemaking or writ- ing (production of a negative) equipment shall be assigned to employees covered by this contract .... NEW MACHINES OR PROCESSES SECTION 57 Should the publisher introduce any new process, machinery, or equipment which functions as a substitute for or evolu- tion of the process of photoengraving de- scribed in paragraph 9, for engraving de- partment work, the Publisher will grant the Union jurisdiction over such process, ma- chinery, or equipment . . . . The Publisher, having announced its intention to install EOCOM writing (production of a negative) and platemaking equipment in the Post main plant and EOCOM platemaking equipment in the Springfield, Virginia, satellite plant, has assigned the operation of this equipment to employees covered by this agreement These provisions grant GAIU jurisdiction over the writing and platemaking portions of the EOCOM, but omit any reference to the scanner or reader portions of the EOCOM. As the contract language appears to be carefully restricted to the EOCOM "writer" or "platemaking equipment" in every place where the EOCOM is discussed, we find that GAIU's collective-bargaining agreement with the Employer appears to limit GAIU's juris- diction to operating only the receiver or writer portion of the EOCOM. 9 It is our opinion that neither the CTU nor the GAIU contract clearly defines or delineates the disputed work. Accordingly, we find that this factor favors neither party. 2. Industry practice The parties cite two examples of relevant indus- try practice. The parties stipulated that the Minne- apolis Star has EOCOM equipment of the type in- stalled at the Employer's facility. However, both scanner and receiver are in one piece and the em- 9 We also note that the canner prtion of the Emploer's ()C()CO system does not necessarily function as a substitule fr a pholoenigras ing procedure. It appears that the scanner or reader unit is essentially a 'e:hl- cle for transmitting cops to the phloengralving department here the photoengraving process then begin, ployer has assigned all work associated with it to the photoengraving bargaining unit. The EOCOM system at the Minneapolis Star is located in one plant and no transmissions outside the plant are made by the EOCOM scanner. The EOCOM system used by the Minneapolis Star does not pro- duce negatives but, instead, goes directly from pas- teup copy to lithographic plates. GAIU cites the assignment at the Minneapolis Star as evidence of current industry practice. The Employer relies on the Board's endorsement of a split assignment of LogEscan work to mem- bers of both the photoengraver and typographer bargaining units at the New York Times. 10 There the employer installed the Logescan facsimile ma- chine which is very similar to the EOCOM and a major competitor thereof. The employer placed the LogEscan scanner in its composing room and as- signed the work of operating it to typographers. The employer placed LogEscan receivers in the platemaking departments and assigned jurisdiction over the receivers to photoengravers. The Board determined that typographers (the composing room bargaining unit) were entitled to operate the LogEscan scanner based on employer preference and economy and efficiency of operations. While the split assignment at The New York Times is very similar to the instant case, the prac- tice of any one newspaper publisher does not deter- mine the practice or custom of an entire industry. The facsimile machines in question appear to have been introduced too recently for any clear pattern to emerge. We find this factor is of little help in this proceeding. 3. Relative skills The EOCOM scanner is a fully automated proc- ess which requires very little skill to operate. The pasteup is simply inserted into a drawer of the scanner, a button is pushed, and the machine elec- tronically transmits a laser image of the pasteup to the receiver portion. All adjustments on the scan- ner are preset. Maintenance and repairs are per- formed by special machinists. No specific compos- ing or photoengraving skills are necessary to oper- ate the scanner. Since both groups possess the req- uisite skills, this factor favors neither party. 4. Economy and efficiency of operation It is undisputed that if the EOCOM scanner is assigned to GAIU, additional GAIU employees would have to be hired to operate it. It is also un- - .%\' Yor4 l'poruapJiua 'niol .¥ 6 aUJ/uai'd wIth Interatillou l - pographil ( 'tion .1-I . ('10 I ( l h .%v. Y'ork iei ('ompani). 242 NlRHB 54 (1974) 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disputed that the Employer has a surplus of CTU employees with guaranteed lifetime jobs who have been displaced by the Employer's conversion to coldtype. The Employer has simply reassigned presently employed CTU employees to the EOCOM scanner. Furthermore, it appears that the EOCOM scan- ner does not require constant manning. When the scanner is not in use, CTU employees can return to pasteup duties in the composing room whereas GAIU employees would have to remain idle or withdraw to the photengraving department to reas- sume photengraving duties. The present assignment of the disputed work to employees represented by CTU permits the Employer to maintain an integrat- ed sequence of operations within the composing room. In addition, the Employer emphasizes the need to concentrate page control and administration in the composing room. The employees operating the EOCOM scanner in the Washington, D.C., com- posing room will eventually be connected by head- phone sets to employees operating the EOCOM re- ceivers in the photoengraving or platemaking de- partments in the Washington, D.C., and Spring- field, Virginia, plants. If the receiver operator de- tects a defect in the negative, he will relay that in- formation back to the scanner operator. The comrn-. posing room will then check to see if the pasteup is the source of the problem and, if so, quickly make corrections, in many instances without ever having to let the pasteup leave the composing room. Thus, the Employer anticipates enhanced pasteup ac- countability, faster reaction time in the event of "makeovers" or "markups," and faster processing of the pasteups to the presses. In this regard, the Employer asserts that the composing room has always had page control responsibilities even prior to the EOCOM process. We find that this factor favors an award of the disputed work to employees represented by CTU. 5. Employer assignment and preference The Employer has assigned the work in dispute to its employees represented by CTU 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 CTU are enti- tled to perform the work in dispute. We reach this conclusion relying on the Employer's assignment and preference and economy and efficiency of op- eration. In making this determination, we are awarding the work in question to employees who are represented by Columbia Typographical Union, AFL-CIO, but not to that Union or its members. The present determination is limited to the particu- lar 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 findings and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: Employees employed by the Washington Post Company, who are represented by Columbia Typo- graphical Union No. 101, affiliated with Interna- tional Typographical Union, AFL-CIO, are enti- tled to perform the operation of the EOCOM scan- ner component located in the composing room of the Employer's facility in Washington, D.C.