220 N.L.R.B. 868 (N.L.R.B. 1975)

Fresno Typographical Union No. 144

National Labor Relations Board - Board DecisionsSep 29, 1975

220 N.L.R.B. 868 (N.L.R.B. 1975)

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fresno Typographical Union No. 144 and McClatchy Newspapers , Publisher of the Fresno Bee and Graphic Arts International Union Local 280. Case 20-CD-443 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 juris- diction herein. September 29, 1975 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10 (k) of the National Labor Relations Act, as amended, follow- ing a charge filed by McClatchy Newspapers, Pub- lisher of the Fresno Bee, alleging that Fresno Typo- graphical Union No. 144, herein also called Typographers , had violated Section 8 (b)(4)(ii)(D) of the Act by engaging in certain proscribed conduct having an object of forcing or requiring the Employ- er to assign certain work to employees represented by it rather than to employees represented by Graphic Arts International Union Local 280, herein called GAIU. Pursuant to notice a hearing was held before Hear- ing Officer Bernard T . Hopkins, on March 5 , 1975, at Fresno, California , and on March 20 and May 9, 1975, at San Francisco, California . All parties ap- peared at the hearing and were afforded full opportu- nity to be heard , to examine and cross -examine wit- nesses , and to present evidence bearing on the issues. Thereafter , the Employer , the Typographers , and the GAIU 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 rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed . The Board has considered the briefs and the entire record in this case and hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER McClatchy Newspapers, Publisher of the Fresno Bee, is publisher of a newspaper of general circula- tion and during the last calendar year received gross revenue in excess of $200,000. The Employer sub- scribes to interstate news services, including the As- sociated Press and United Press International wire services, and advertises nationally sold products. Ac- cordingly, we find, as the parties have stipulated, that 11. THE LABOR ORGANIZATIONS The parties stipulated , and we find , that the Ty- pographers and the GAIU are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute consists of operation of the new Laser Graphic System Plate Process and all at- tendant work functions at the Employer 's Fresno, California , facility. B. Background and Facts of the Dispute Prior to October 1974, the Employer utilized the traditional hot-metal process in its printing opera- tion. In this process, news and editorial material is reproduced by means of metal slugs of type which are arranged into lines and used to make impressions on celluloid mats. Illustrative material is pho- tographed and the resulting negative, after being in- spected for quality, is placed on a prepared zinc plate and exposed to a light source which burns an image onto the plate. The plate is then put into a nitric acid bath which etches away the unexposed portions. Af- ter again being inspected and trimmed, the photoen- graved plate is locked into a chase along with the editorial material and used to impress the mats. The mats, in turn, receive an injection of hot metal from which a semicylindrical lead plate is formed. This plate is fastened to the press and used to do the actu- al printing of the newspaper page. The Typographers and the GAIU have traditional- ly represented, in separate units, certain of the em- ployees in the Employer's mechanical departments. Under the traditional process at the Employer's plant, employees represented by the Typographers performed all composing room work, including hand composition, typesetting, and makeup. Photengrav- ers represented by the GAIU prepared the negatives and etched the zinc plates. Starting in October 1974 the Employer began to phase out the making of mats and lead plates and began to convert to a cold-type system. Under this process both editorial and illustrative material is pro- duced as pieces of paper by a photocomposition ma- chine. The material is pasted up on paper sheets and 220 NLRB No. 138 FRESNO TYPOGRAPHICAL UNION NO. 144 869 then photographed. The resulting negative is used to photoengrave a magnesium plate which is flexible enough to be attached directly to the press, thereby eliminating the necessity for mats and lead plates. While this interim process was being used, employees represented by the GAIU photoengraved the magne- sium plates and employees represented by the Ty- pographers performed the punching, bending, and trimming operations required before the plates could be attached to the press. In January 1975 the Employer converted its opera- tion to the new laser graphic system. Under this pro- cess there are three basic component pieces of equip- ment, the partial page release unit, the scan-scribe unit, and the ablating unit. The partial page release unit enables a plate to be made from only a partial pasteup, thereby permitting portions of a printing plate containing material such as advertisements or features to be completed before last-minute news items are ready. The partial page pasteup is brought to the partial page release unit, which contains a computer capable of identifying the areas on the pasteup which are not completed. The information is stored on a small piece of equipment called a "floppy disc" which is carried with the partial pasteup to the scan-scribe unit , a large piece of equipment with two tables in the shape of a letter "T." The pasteup is placed on the table on one side of the unit and the laser plate, a flexible sheet with a thin copper coat- ing, is placed on the other side. The "floppy disc" is inserted in a computer located in the scan-scribe equipment. A helium neon laser beam reads the in- formation on the pasteup and simultaneously trans- mits that information to an argon laser which writes it onto the copper surface of the plate. The uncom- pleted sections of the pasteup are left blank on the plate. The plate is then taken to the ablating unit where it is placed on a table. A carbon dioxide laser beam ablates the plastic substrate of the plate into a gas, leaving a relief surface created by the vaporiza- tion of the nonprinting areas . When last-minute news items are ready to go to press the page pasteup is finished with news copy and the previously partially ablated plate is brought to the scan-scribe unit for the scribing of the material not previously transferred onto it. The plate is then again taken to the ablating unit and there finished off. After being ablated the plate then is punched, bent, and trimmed to prepare it to be locked onto a saddle on the printing press. The laser graphic system is unique among direct printing processes in that it does not utilize any cam- era process whatsoever. In September 1974, after the Employer decided to convert to the laser graphic system, the executive vice president of the GAIU wrote to the Employer claim- ing jurisdiction over that process. On October 4, 1974, the president of the Typographers by letter ad- vised the Employer that the Typographers also claimed the work in dispute. By letter dated January 24, 1975, the general executive of the Employer, Rog- er C. Coryell, advised the Typographers that the work would be assigned to employees represented by that labor organization. Thereafter, by letter dated January 22, 1975, the GAIU requested arbitration of the issue pursuant to its collective-bargaining agree- ment with the Employer. Subsequently, on January 31, 1975, the Typographers advised the Employer by letter that "we intend to defend our jurisdiction in this respect by any means necessary, including eco- nomic action if required." Thereafter, on February 4, 1975, the Employer filed the instant charge alleging that the Typographers, by threatening to strike for the stated object, violated Section 8(b)(4)(D) of the Act. C. Contentions of the Parties The GAIU takes no position as to whether or not reasonable cause exists to believe that Section 8(b)(4)(D) of the Act has been violated. On the mer- its GAIU contends that the work in dispute should be assigned to the employees represented by it on the basis of its collective-bargaining agreement with the Employer, area practice among newspapers which utilize flexible direct printing press plates, job im- pact, and the skills and experience of platemaking possessed by the photoengravers. The Employer contends that there is reasonable cause to believe the Typographers violated Section 8(b)(4)(D) by threatening to strike. With respect to the merits of the dispute, the Employer contends the work should be awarded to employees represented by the Typographers on the basis of that labor organization's collective-bargaining agreement with the Employer, efficiency and economy of operation, skills and training possessed by composing room em- ployees, job impact, industry practice, and the Employer's preference. Typographers agrees with the Employer's position on the merits, but apparently does not rely on the Employer's preference in contending that the work in dispute should be awarded to the employees it repre- sents. D. Applicability of the Statute Before the Board may proceed to a determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that ( 1) there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violated , and (2) there is no agreed-upon method for the voluntary adjustment of the dispute. As to ( 1) above, the record establishes that by let- ter dated January 31 , 1975, the Typographers , in stat- ing it would take economic action, threatened to strike if the disputed work were not assigned to em- ployees it represents . Accordingly , we find that rea- sonable cause exists to believe that Section 8(b)(4)(D) of the Act has been violated. As to (2) above , the record contains no evidence that an agreed-upon method exists for the voluntary adjustment of the dispute . Accordingly, we find the dispute is properly before the Board for determina- tion 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 the disputed work af- ter giving due consideration to various relevant fac- tors, including the following: 1. Certification and collective -bargaining agreements It does not appear from the record that either the Typographers or the GAIU has been certified by the Board as exclusive representative of any of the Employer's employees . The Employer and the GAIU entered into a collective-bargaining agreement effec- tive January 1, 1974, and expiring December 31, 1976. Section 4.2 of this contract provides in perti- nent part that should the Employer install any equipment or adopt any work processes designed as a substi- tute for, or evolution of work now being done by its photoengravers , the Employer agrees to rec- ognize the jurisdiction of the GAIU over such equipment and work processes. The GAIU contends that this provision favors awarding the disputed work to employees it repre- sents inasmuch as the laser graphic system is a substi- tute for the magnesium printing plates produced by the photoengravers from October 1974 to January 1975. However, by letter dated November 27, 1974, prior to execution of the aforementioned agreement, the Employer advised the GAIU that: Pursuant to the position consistently maintained by McClatchy Newspapers throughout the ne- gotiations , the new agreement is forwarded here- with subject to our understanding that no provi- sion of this contract includes or confers upon GAIU Local 280 any jurisdiction over the Laser Graph [sic] System or any other present or fu- ture plate making systems which may be utilized by any of the McClatchy Newspapers. At the opening of the hearing the Employer and the Typographers had reached agreement on, but had not executed , a new collective -bargaining agree- ment . The jurisdictional provision set forth in section 6 of that agreement as eventually executed is identi- cal to that in the parties ' 1971-73 agreement and pro- vides that the Typographers jurisdiction shall include all composing room work . By a "Memorandum of Understanding" executed by the Employer and the Typographers on April 1, 1975, the Employer and the Typographers agreed that: Pursuant to Section 6 of the collective -bargain- ing agreement between the parties , which de- fines the jurisdiction of the Union to include "all composing room work of the Publisher" the Fresno Bee assigns the following work to com- posing room employees covered by the aforesaid agreement: All work functions related to- 1. Partial page release units 2. Scan Scribe units 3. Ablation units 4. Punch , bending and trimming of plates 5. Maintenance of the equipment. The GAIU contends that the laser graphic system plates constitute a substitute for the magnesium press plates previously made by employees it represents, and that , accordingly , its contract with the Employer favors assignment of the disputed work to the em- ployees it represents . It is true that the laser graphic system plates are , like the magnesium plates , direct printing plates , and therefore it can be argued that the laser graphic system plates are a substitute for plates previously prepared by employees represented by the GAIU. However , it is clear from the Novem- ber 27, 1974, letter quoted above that the Employer and the GAIU did not reach agreement as to wheth- er their contract covered the work in dispute. Ac- cordingly , we do not find that the contract between the Employer and the GAIU favors awarding the work in dispute to employees represented by that la- bor organization . However, we also find that the col- lective-bargaining agreement between the Employer and the Typographers does not favor awarding work to employees represented by that Union inasmuch as it does not specifically cover the disputed work, and the April 1975 "Memorandum of Understanding" was not executed until after the Employer's assign- ment of the work in dispute . Accordingly, we find that the factors of certifications and collective-bar- gaining agreements do not favor awarding the work FRESNO TYPOGRAPHICAL UNION NO . 144 871 in dispute to one group of employees rather than the other. 2. Employer and area practice Inasmuch as prior to assigning the work in dispute to the employees represented by the Typographers, the Employer had never utilized the laser graphic system , we find that the factor of employer practice does not favor award of the work in dispute to one group of employees rather than the other. With respect to area and industry practice , the rec- ord indicates that the laser graphic system is utilized at only one other newspaper in the United States, The Star-Gazette in Elmira, New York, and that at that newspaper the laser graphic equipment is oper- ated by employees represented by a local of the In- ternational Typographical Union. However, we note that there appear to be no employees at that newspa- per represented by the GAIU. Accordingly, we find that this factor does not favor award of the disputed work to one group of employees rather than the other . With respect to area practice among newspa- pers utilizing other types of direct printing plates, the GAIU introduced evidence at the hearing that at sev- eral other newspapers in northern California flexible direct printing press plates are made by employees represented by the GAIU. However, all of these newspapers use direct printing plate systems which require camera work such as that traditionally done by photoengravers. Inasmuch as the laser graphic system does not utilize a camera and is therefore un- like other direct printing processes , we find that the evidence adduced by the GAIU as to area practice among newspapers which employ other platemaking systems does not support the GAIU's contention that the area practice warrants an award of the disputed work to employees it represents . Accordingly, we find that the factors of area and industry practice do not favor award of the disputed work to one group of employees rather than the other. 3. Effect on employment Pursuant to an agreement between the Typogra- phers and the Employer , 95 situations in the compos- ing room are guaranteed . The conversion to the laser graphic system did not result in an increase in the number of positions in the composing room but rath- er required existing employees to be utilized . Conse- quently, if the laser graphic work were assigned to another group of employees the Employer would still be required to pay some of the composing room em- ployees even though there would be no work for them to perform. No such agreement exists between the Employer and the GAIU, and the record indicates that the in- stallation of the new system resulted in the layoff of two or three of the photoengravers represented by the GAIU. It therefore appears that if the disputed work is awarded to the employees represented by the GAIU, no positions would be lost in the bargaining unit represented by Typographers, while if the work is awarded to employees represented by the Typogra- phers two or three photoengravers will be eliminated. Accordingly, we find that this factor tends to favor awarding the work in dispute to employees repre- sented by the GAIU. On the other hand , if the disputed work is awarded to employees represented by the GAIU, the Employ- er will be required to employ more photoengravers without being able to terminate an equivalent num- ber of composing room personnel and will therefore not be able to operate as economically as it would if the work were awarded to employees represented by the Typographers. 4. Skills, efficiency, and economy John Tarter, production manager for the Fresno Bee, testified without contradiction that the opera- tion of the laser graphic system was assigned to the employees represented by the Typographers because the machinists and technicians in the composing room have the experience and training to operate and maintain the complex equipment associated with that system. He further testified that there are no jurisdictional lines within the composing room itself and that , therefore, it would be more efficient and economical for employees represented by the Typog- raphers, who can perform other composing room functions as well as those involved in the laser graph- ic system, to operate the new equipment. The employees represented by the GAIU may not perform any other composing room work and, there- fore , inasmuch as the laser graphic equipment is not constantly in use, if employees represented by the GAIU were awarded the disputed work there would be periods of time during which no work would be available for them. In view of these considerations, we find that the factors of skills, efficiency, and econ- omy favor an award of the disputed work to employ- ees represented by the Typographers. Conclusion Upon the record as a whole, and after full consid- eration of all relevant factors involved, we conclude 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the employees of the McClatchy Newspapers, Publisher of the Fresno Bee, who are represented by the Typographers, are entitled to perform the work in dispute. We reach this conclusion in reliance on the facts that such an assignment will result in greater efficiency and economy of operation and that the employees represented by the Typographers possess the requisite skills and experience to perform the work. Accordingly, we shall determine the dispute before us by awarding the disputed work at the Employer's publishing plant in Fresno, California, to the employees represented by the Typographers but not to that Union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings in the entire record in this pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: Employees of McClatchy Newspapers, Publisher of the Fresno Bee, who are represented by Fresno Typographical Union No. 144, are entitled to per- form the operation of the new laser graphic system plate process and all attendant work functions at the Employer's Fresno, California, facility.