Graphic Communications Local 527-S (Dittler Bros)

National Labor Relations Board - Board Decisions

Sep 25, 1985

276 N.L.R.B. 609 (N.L.R.B. 1985)

GRAPHIC COMMUNICATIONS LOCAL 527-S (DITTLER BROS)
Graphic Communications Union, Local 527-S and
Dittler Brothers , Inc. Case 10-CD-306
25 September 1985
DECISION AND DETERMINATION OF
DISPUTE --
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
The charge in this Section 10(k) proceeding was
filed 7 March 1985 by the Employer, alleging that
the Respondent, Graphic Communications Union,
Local 527-S (Local 527-S), violated- 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 em-
ployees it represents rather than to employees rep-
resented by Graphic Arts International Union,
Local 96B (Local 96B). The hearing was -held 9
May 1985 before Hearing Officer Steven K. Leibel.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
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.
I. JURISDICTION
The Employer, a Georgia corporation, is en-
gaged in specialty printing at its Atlanta, Georgia
facility, where it annually purchases and receives
goods, products, and materials,"valued in excess of
$50,000, directly from points located outside -the
State of Georgia. The parties stipulate, and we
find, that the Employer is engaged in commerce
within' the meaning of Section 2(6) and (7) of the
Act and that Local 527-S and Local 96B 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 specialty printing company
that produces airline timetables, motel directories,-
and lottery tickets.° It is,.also the world's largest
producer of game pieces that are distributed by fast
food restaurants, supermarkets, and oil companies
for promotional purposes. These game pieces are
cardboard tickets containing a silver coating that
customers scratch off to determine if the piece will
entitle them to a prize.
Local 96B has represented the Employer's bind-
ery workers for over 36 years. The Employer and
Local 96B are currently parties to a collective-bar-
609
gaining agreement that became effective 1 Septem-
ber 1983, and which will terminate -28 February
1987. The agreement defines Local 96B's jurisdic-
tion as including the following classifications, or
encompassing employees doing the following
work: ,
[B]ookbinders on bench, finishers, folding ma-
chine operators, ruling machine operators, cut-
ting and trimming machine operators, stitching
machine operators, punching, hand work, drill-
ing, tinning, collating types of bindery machin-
ery, and any operation normally performed by
bindery workers and assistants on the above-
operations.
The agreement also sets forth three bookbinder
classifications. The duties for bookbinders I and II
are generally encompassed by the work set forth in
the jurisdiction clause. The following duties not
specifically encompassed by the clause are assigned
to bookbinder Ills: "handwork, inspecting, count-
ing, typing [sic], wrapping, banding, glueing, pack-
ing kits, sealing, hand inserting, and general pack-
ing.11
The agreement further provides that foremen
"shall not, under any circumstances, require em-
ployees to extend themselves beyond normal en-
durance." This provision was added in response to
bookbinders' complaints about heavy lifting. The
bookbinders nevertheless regularly lift 26- to 36-
pound boxes. -
Local 527-S represents the Employer's "special-
ty" workers. It was first certified by the Board in
1961 1 as exclusive representative of the Employ-
er's employees in-the following unit:
All truck drivers, packers, washup men, com-
bination packer and utility men, jacklift men
and helpers, and porters.
Local. 527-S and the Employer are currently
parties to a collective-bargaining agreement that
became effective I May 1984, and which will ter-
minate 30 April 1988. The agreement defines Local
527-S's jurisdiction as including the Board-certified
unit . The agreement specifically reserves for the
Employer the right to transfer employees to any
"utility work" and sets forth the rates of pay appli-
cable to employees temporarily transferred. The
agreement does not limit the extent to which spe-
cialty workers may be assigned heavy work.
The Employer has traditionally produced its pro-
motional game pieces'using a sheet-fed press. Oper-
ated,. by employees represented by Pressmen's
' It was then known as Atlanta Printing Specialties and Paper Prod-
ucts Union, Local 527, subordinate to International Punting Pressmen
and Assistants ' Union of North America, AFL-CIO -
276 NLRB No. 79
610 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 8, the sheet-fed press produces sheets of 80
uncut pieces. The press operators load these sheets
onto pallets and specialty workers deliver them to
bindery workers for further processing.
The pieces are produced in several configura-
tions of "winning" and "common" (nonwinning)
pieces. The bindery workers manually collate the
sheets onto pallets to bring together the various
configurations.
The * pallets .of collated sheets are then delivered
to a bindery 'worker operating a slitter . The slitter
cuts the sheets into rows of game pieces, and the
bindery worker then rakes the rows to randomly
mix the winning and common pieces.
The raked rows are stacked and a specialty
worker - delivers them to another bindery worker
operating 'a "guillotine cutter." The guillotine
cutter cuts the rows into individual tickets, which
are then stacked.
The same -bindery worker takes the individual
game pieces to a tumbler that mixes the pieces fur-
ther and dumps them into boxes. Specialty workers
then close and seal the boxes, and pack them on
pallets for shipping.
Throughout this process, bindery workers have a
duty to inspect the pieces for defects; specialty
workers do not.
In '1982, the' Employer began using an "in-line"
automated press that automatically produces com-
pleted, individual "press-finished" game pieces. The
Employer's press is the only one of its kind in the
world and is extremely fast. The automated press
can produce 15 million game pieces per -day, a
number that would take the sheet-fed press several
weeks to produce. ' The automated press did not
completely replace the sheet-fed press, however, as
the latter is more appropriate for some smaller
jobs. The automated press is operated exclusively
by employees represented by Pressmen's Local 8,
although bindery 'employees sometimes assist the
press operators in inspecting the -press-finished
game pieces it produces.
The automated press can produce only one con-
figuration of winning and' common game pieces at
a* time. When more than one configuration is
needed, the 'completed pieces in each configuration
are moved in-. boxes from the press by specialty
workers to a staging area . They are stored there
until all the configurations are produced, after
which a specialty worker moves the boxes from
the staging area to a conveyor belt for mixing and
repacking:,
Employees stand at designated areas along the
mixing and repacking line conveyor belt and the
first of them dumps a box of game pieces onto the
belt. As the pile of game pieces moves down the
belt, other employees dump boxes of other configu-
rations on top of the pile and the pieces are thus
mixed. At the end of the belt, the pieces fall into
empty boxes. Specialty workers then seal, stack,
and move the 40-pound boxes" to the shipping de-
partment to be delivered. to the Employer's cus-
tomers.
In other operations, the Employer has always as-
signed packing, or mixing and packing, to bindery
workers or press operators when that work was
the last procedure in a sequence of procedures they
performed. Thus, the bindery workers who are as- -
signed to operate the guillotine, cutters and tum-
blers in the sheet-fed operation mix the game pieces
with the tumblers and dump the mixed pieces into
boxes. Similarly, press operators in other operations
pack boxes of printed material at the end of their
printing procedure.
Where the packing is not the last of a sequence
of procedures performed by bindery workers or
press operators, however, the Employer has his-
torically assigned that work to specialty workers.
Thus, specialty workers repack printed material in
the shipping department when the Employer needs
that material shipped in containers larger than
those in which it was originally packed. -
Since mixing and repacking the press-finished
game pieces was not the last of a sequence of pro-
cedures performed by the bindery workers or press
operators, the Employer assigned that work to spe-
cialty workers.
No employees were permanently assigned to
mixing and repacking the game pieces because the
automated press operates only three to five times
during the year, running for a day to several weeks
at a time. Instead, the Employer transfers specialty
workers from other jobs to do the work. -When
necessary, the Employer hires temporary employ-
ees and pays them pursuant to the Local 527-S
specialty workers' contract. On one occasion, the
Employer assigned bindery workers to the mixing
and repacking operation to prepare boxes for re-
packing. They did not, however, actually perform
mixing and repacking.
When the Employer in 1982 first assigned spe-
cialty workers to do the work, a Local 96B shop
steward contended to several foremen that the
work should instead be done by bindery workers.
The foremen, however, refused to change the as-
signment, and the steward did not thereafter pursue
his contention.
The Employer received no further complaints
about the work assignment until August 1984 when
several laid-off bookbinders filed grievances. They
contended the work was within Local 96B's juris-
diction and demanded they be recalled to perform
GRAPHIC COMMUNICATIONS LOCAL 527-S (DITTLER BROS) 611
it. The Employer processed -the grievances and
denied them at every step until' they were referred
to a joint standing committee pursuant to- the con-
tractual procedure. At that stage, the Employer's
representative failed to vote on the grievances,
which the Union believed precluded the grievances
from proceeding to arbitration. -
On 30 November 1984 -Local 527-S President
Ralph M. Meers wrote. the Employer about Local
96B's grievances. Meers told the Employer that,if
it reassigned the mixing and repacking work, he
would "have no choice but to terminate the.
present Labor Agreement and take whatever eco-
nomic action. [he] deem[ed] appropriate up to and
including a work stoppage."
B. Work in Dispute'-
The disputed work is mixing and repacking
press-finished promotional game pieces produced
by the Employer's in-line-automated printing press.
C. Contentions of the Parties
The Employer contends that Meers' 30 Novem-
ber threat to terminate Local 527-S's contract with
the Employer in the event it reassigned the disput-
ed work to Local 96B-represented bindery work-
ers, proves "that work-in-dispute does indeed
exist."
Together with Local 527-S, the Employer con-
tends the Board should assign the disputed work to
the .specialty workers represented by Local 527-S
based on the Board's, having certified Local 527-S
to represent "packers" and "combination packer
and utility men," and because it and Local 527-S
agreed contractually- that Local 527-S would have
jurisdiction over those same employees.
The - Employer - also asserts that its preference,
practice of awarding like work to specialty work-
ers; the relative skills of, specialty and bindery
workers, as well as concern for, the economy and
efficiency of its operation, further support award-
ing the work to Local 527-S-represented employ-
ees. _
Local 527-S also contends the specialty workers
it represents should be assigned the disputed work
because Local 96B delayed for 2-1/2 years before
claiming it.
Local 96B denies that -its claim is stale and con-
tends the Board should award_the_disputed work to
the bindery workers,it represents based on the Em-
ployer's contract with Local '96B, which gives
Local 96B jurisdiction over "finishers" and "hand
work." Local - 96B also cites its contractually de-
fined job classifications that list "handwork,
"packing kits," and "general packing" among the
classified duties. Local 96B further contends that
the Employer's practice of assigning mixing work
to bindery workers also supports awarding the dis-
- -L- - -^-puted
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) has been violated, and
that the parties have not agreed -on a method to
voluntarily adjust the dispute. -
Local' 96B President Meers' threat to "take
whatever economic action [he] deem[ed] appropri-
ate up to and including a work stoppage" in the
event the Employer reassigned the disputed work,
provides reasonable - cause to believe Section
8(b)(4)(D) has ' been violated.2 Also, the parties
have not agreed on a method to voluntarily adjust
this dispute.
Accordingly, we find that the dispute is properly
before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires that the Board make anaf-
firmative award of disputed, work after. considering
various factors. NLRB V.' Electrical Workers IBEW
Local 1212' (Columbia` Broadcasting System), 364
U.S. 573 (1961). The Board has held that its deter-
mination in a jurisdictional dispute is an act of
judgment based on common sense and experience,
reached by balancing the factors involved in a -par-
ticular case. Machinists Lodge 1743 (J., A. Jones
Construction), 135 NLRB 1402, 1410-11 (1962).
The following factors are relevant in making the
determination of-this dispute.
1. Certification'-and collective-bargaining
agreements
As noted, the disputed work involves mixing and
repacking. Neither the Board's certification, nor
the parties' collective-bargaining agreements, spe-
cifically mention mixing, and repacking. Local
96B's collective-bargaining agreement, however,
lists "general packing" among the duties of a classi-
fied job. Also, the Board certified Local 527-S to
represent "packers" and "combination- packer and
utility men," and Local 527-S's collective-bargain-
ing - agreement with the Employer adopts the certi-
fied unit as the Union's contractual jurisdiction.
Although the agreements contain other work de-
scriptions that arguably cover the disputed work,
the agreements' and certification's references to
"packing" and "packers"" are those most,closely re-
2 Broadcast Employees NABET Local 16 (American Broadcasting Co),
227 NLRB 1462 , 1463-64 (1977)
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD-
lated to the disputed work. Because each contains
at least one of these similar references,.-neither of
the agreements, nor the Local 527-S certification,
supports awarding the work to employees repre-
sented by one union over those represented by the
other. 3
2. The Employer's preference and past
practice
The Employer, prefers that its specialty workers
rather than its bindery workers perform the disput-
ed work. It thus assigned the work to its specialty
workers in 1982, and those employees performed it
for 2-1/2 years before Local 96B seriously pursued
its contention that the work rightfully belonged to
bindery workers. Although we do not find that
Local 96B's acquiescence causes it automatically to
forfeit its claim,4 we find that its lengthy delay,
along with the Employer's demonstrated prefer-'
ence, strongly supports awarding the work to the
specialty workers.
We also find that the Employer's 1982 work as-
signment was consistent, with its general practice.
As noted, the Employer consistently. awarded
packing work'to specialty workers when packing
was not the last of a sequence of procedures per-
formed by other employees. Although bindery
workers sometimes assist in inspecting the promo-
tional game pieces, only press operators produce
them. Also, the game pieces are often stored be-
tween production and mixing and repacking. Bind-
ery workers thus are not involved in any sequence
of procedures on the game pieces of which mixing
and repacking is the last procedure.
The Employer's past practice instead favors the
specialty workers. Mixing and repacking the game
pieces is in the middle of a sequence of procedures
performed entirely by specialty workers-moving
the press-finished pieces from the automated press
to the 'shipping department for delivery to the Em-
ployer's customers.
Accordingly, we find the Employer's preference,
the fact that specialty workers performed 'the work
for 2-1/2 years without Local 96B seriously con-
testing it, and the Employer's past practice with re-
spect ' to other work, strongly support awarding the
disputed-work to the specialty workers represented
by Local 527-S.,
3. Area and industry practice
Because the Employer's automated press is the
only one-of its kind in the world, there is no rele-
8 Teamsters Local 996 (Kapiolani/Children's Medical Center), 268
NLRB 1071, 1072 (1984)
4 See Teamsters Local 959 (Mukluk Freight Lines), 234 NLRB 545,_548
(1978) -
vant area or industry practice to consider. We shall
therefore rely more heavily on the Employer's
preference in determining .this dispute. 5
4. Relative skills
The disputed work involves little skill and both
groups of employees are capable of performing it.
The work, however, does involve lifting over 70
40-pound boxes per hour and dumping them onto
the conveyor.
While bindery workers have complained about
heavy lifting in the past, and had a clause prevent-
ing foremen from extending them "beyond normal.
endurance" added to their contract, they neverthe-
less regularly lift 26- to 36-pound boxes in their
other work. We therefore do not find that the
weight of the boxes, and the endurance required to
lift them repeatedly, militates against awarding the
disputed work to the Local 96B-represented bind-
ery, workers, or in favor -of awarding it to the spe-
cialty workers represented by Local 527-S.
5. Economy and efficiency of operation
The Employer argues that concern for its econo-
my and efficiency support awarding the disputed
work to specialty workers because those employees
handle the pieces both before and after they are
mixed and repacked. 6 According to Gilbert Bach-
man, the Employer's chairman of the board and
chief executive officer, however, mixing and re-
packing the game pieces is a "fast operation" re-
quiring that specialty workers constantly bring
boxes of unmixed pieces to the conveyor belt while
other workers mix and repack them. Thus, the Em-
ployer must hire the same number of employees re-
gardless of which group is awarded the disputed
work, and no employees will be left standing idle
because of the award.
Accordingly, we do not find that the economy
and efficiency-of the Employer's operation will be
enhanced by awarding the disputed work to spe-
cialty workers rather than bindery workers.
s See Iron Workers Local 86 (Kulama Erectors), 264 NLRB 166, 169
(1982)
e The Employer also relies on that provision in its contract with Local
527--5 that explicitly permits it to transfer specialty workers to any "utili-
ty work "
Assuming that the disputed work constitutes "utility work" under the
contract , we are nevertheless not convinced that the provision apprecia-
bly adds to the' economy or efficiency of the Employer 's operation when
the Employer uses specialty workers rather than bindery workers to per-
form the disputed work The Employer has not identified , nor have we
found, any provision in Local 96B 's contract that would prevent the Em-
ployer from transferring bindery workers In fact , the Employer has, in
the past transferred bindery workers to the mixing and repacking oper-
ation to prepare boxes without complaint It also sometimes transfers
bindery workers to the automated press to assist the press operators in
inspecting game pieces on the sporadic occasions when the press oper-
ates
GRAPHIC COMMUNICATIONS LOCAL 527-S (DITTLER BROS.) 613
Conclusion
After' considering all the relevant factors, we
conclude that employees represented by Local
527-S are entitled to perform the work in dispute.
We reach this conclusion relying on the Employ-
er's preference , Local 527-S-represented specialty
workers ' performance of the disputed work for 2-
1/2 years without Local 96B seriously contesting
it, and the Employer's past practice with respect to
other work . In making this determination, we are
awarding the work to employees represented by
Local 527-S, not to that union or its members. The
determination is limited to the controversy that
gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees of Dittler Brothers, Inc., represented
by Graphic Communications Union, Local 527-S,
are entitled to perform mixing and repacking press-
finished promotional game pieces produced by the
Employer's in-line automated printing press at the
Employer's Atlanta, Georgia facility.