Graphic Communications Workers Local 508M (Jos. Berning Printing Co.)

National Labor Relations Board - Board Decisions

Jul 21, 2000

331 N.L.R.B. 846 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 846
Graphic Communications International Union, Local
508M, O-K-I, AFL–CIO and Jos. Berning Print-
ing Company and Cincinnati Typographical Un-
ion, Local 3/CWA 14519, AFL–CIO. Case 9–
CD–485–1
July 21, 2000
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
The charge in this Section 10(k) proceeding was filed
June 3, 1999, by the Employer, Jos. Berning Printing
Company, alleging that the Respondent, Graphic Com-
munications International Union, Local 508 O-K-I,
AFL–CIO (GCIU or Local 508M), violated Section
8(b)(4)(D) of the National Labor Relations Act by engag-
ing in proscribed activity with an object of forcing the
Employer to assign certain work to employees it repre-
sents rather than to employees represented by Cincinnati
Typographical Union, Local 3/CWA 14519, AFL–CIO
(CTU). The hearing was held June 21, 1999, before
Hearing Officer Theresa Donnelly.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire re-
cord, the Board makes the following findings.
I. JURISDICTION
The parties stipulated that the Employer, an Ohio cor-
poration, is engaged in offset and lithographic printing at
its facility in Cincinnati, Ohio. In the past 12 months the
Employer has sold and shipped goods valued in excess of
$50,000 from its Cincinnati, Ohio facility to points out-
side the State of Ohio. In the past year the Employer
derived gross revenues in excess of $500,000. The par-
ties 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 GCIU and CTU are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is engaged in the commercial printing
business. The Employer currently employs 18 individu-
als. Twelve of them are employees who are represented
by two labor organizations, the Cincinnati Typographical
Union and the Graphic Communications International
Union, Local 508M. Eleven are represented by the
GCIU and one is represented by the CTU. The Employer
is party to collective-bargaining agreements with both
Local 508M and the CTU. The Employer has performed
the disputed prepress preparatory stripping work since
1970. Prior to 1993, the work was exclusively per-
formed by Richard and Michael Berning, the Employer’s
owners. They were, and are, active members of the
CTU.1 Currently two employees perform the disputed
work. They are Mark Trenn, a stripper for the Employer
since 1993 and a member of the CTU, and Tom Giaccio,
a member of Local 508M.
Giaccio was hired on November 10, 1997, and subse-
quently became a member of the GCIU.2 On learning
that an employee represented by the GCIU was perform-
ing the disputed work, the CTU filed a grievance. A
grievance meeting ensued and the parties deadlocked.
The president of the CTU then informed the Employer
that he would pursue the grievance to arbitration. On
May 3, Local 508M informed the Employer, in writing,
of its intent to strike if the grievance resulted in a change
of the status quo. The Employer then filed this charge,
and the CTU agreed to hold the arbitration in abeyance
pending the result of the 10(k) hearing.
B. Work in Dispute
The disputed work involves “the assignment of pre-
press preparatory work involving the stripping of materi-
als for camera work” at the Jos. Berning Printing Com-
pany.3 This involves taking a picture of the image to be
printed. This picture, or negative, is taken to a light ta-
ble, then stripped into a masking form. The masking
form holds the negative in place. The stripped negative
and a light sensitive plate are then vacuumed together
and a light is shot through the negative burning the nega-
tive onto the printing plate.
C. Contentions of the Parties
The Employer contends that employees represented by
Local 508M should be awarded the stripping work be-
cause its collective-bargaining agreement clearly pro-
vides it jurisdiction over such work and that it is “the
stronger, better union.” In its brief the Employer also
argued that the GCIU’s contract specifically covered the

1 Both Michael and Richard Berning continue to be dues paying
members of the CTU although neither have performed stripping work
in years.
2 Tom Giaccio was hired and subsequently placed in the GCIU unit
by the Employer. On direct examination the Employer’s attorney ques-
tioned Michael Berning, the Employer’s president, in pertinent part:
Q. In the labor contracts, what factors do you consider in
awarding the work to the GCIU when you hired Tom Giaccio ap-
proximately a year and a half ago?
A. When Tom was hired, I looked at both contracts . . . . And
I just thought that it was a—it was a better situation for Tom Gi-
accio to be in a stronger, better union with the rest of the people in
the shop.
Furthermore on cross-examination, the attorney for the CTU asked Michael
Berning:
Q. So wasn’t he (Richard Berning past President of the Em-
ployer) the one who had to make the decision on what union Mr.
Giaccio would be assigned to? [Emphasis added.]
A. We—did it as a joint venture, together, correct. [Emphasis
added.]
3 In reality, the dispute concerns only the stripping work performed
by Giaccio. No one contests the stripping work done by Trenn.
331 NLRB No. 102

GRAPHIC COMMUNICATIONS WORKERS LOCAL 508M (JOS. BERNING PRINTING) 847
disputed work while the CTU’s contract referred to strip-
ping associated with composing or typographical work
which the Employer no longer performs.
Local 508M is in agreement with the Employer. Local
508M also claims that the GCIU traditionally represents
employees performing the disputed task in the Cincinnati
area and nationwide.
The CTU contends that its collective-bargaining
agreement provides employees it represents with exclu-
sive jurisdiction over the disputed work, that it is the
only Union to have represented strippers at Jos. Berning
Company, and that in the Cincinnati area it has a history
of representing those employees.
D. Applicability of the Statute
Before the National Labor Relations Board may pro-
ceed with a determination of the dispute pursuant to Sec-
tion 10(k), it must be satisfied that reasonable cause ex-
ists to believe that Section 8(b)(4)(D) has been violated
and the parties have not agreed on a method for the vol-
untary settlement of their dispute.
On April 16, 1999, the CTU filed a grievance asserting
that the Employer violated the terms of the collective-
bargaining agreement by assigning the performance of
stripping work to Tom Giaccio. Subsequently, at the
grievance meeting, the parties deadlocked and the CTU
informed the Employer it intended to proceed to arbitra-
tion. On April 23, 1999, the Employer notified the
GCIU of the CTU’s intent to proceed to arbitration. On
May 3, 1999, the GCIU informed the Employer that if
arbitration resulted in a change in the status quo, the
GCIU would strike. The parties stipulated that there is
no method of resolving the dispute that would be binding
on all the parties.
We find reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that there exists no
agreed-on method for voluntary adjustment of the dis-
pute within the meaning of Section 10(k) of the Act.
Accordingly, we find that the dispute is properly before
the Board for determination.4

4 Contrary to our dissenting colleague, we conclude that this dispute
is jurisdictional in nature rather than representational. We further dis-
agree with our colleague’s view that since no one is disputing Mark
Trenn’s right to perform the work, the dispute is solely about Giaccio’s
unit placement. The CTU stated in its grievance that Giaccio was
placed in the “wrong union.” If this were all that was said and argued,
we might agree with our colleague. However, the CTU subsequently
clarified what it sought. On brief to the Board, the CTU makes clear
that what it seeks is not merely Giaccio’s membership in the CTU.
Rather, as stated in the conclusional statement in their posthearing
brief, the “CTU respectfully requests that the Board assign the prepress
preparatory work involving the stripping of material for camera work to
the CTU.” Furthermore, CTU President Jim Plogmann testified on
direct examination that after hearing that another employee (Giaccio)
was working with Trenn, Plogmann immediately sent a letter to Jos.
Berning Printing Company requesting information about Giaccio
“[b]ecause it appeared to me, from what Mark had told me that he
(Giaccio) was doing our work.” (Emphasis added.) Thus the CTU
claimed the right for the employees it represents to perform the work
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743 (J. A.
Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Board certifications and collective-
bargaining agreements
Both the GCIU and the CTU have collective-bar-
gaining agreements with the Employer containing lan-
guage that, on its face, arguably entitles employees they
represent to perform the disputed work. However, nei-
ther union is certified by the Board as the representative
of the two employees who perform such work. Section
4(a) of the CTU’s collective-bargaining agreement states
in relevant part that “the Employer shall not make any
other contract covering the work mentioned above espe-
cially no contract using the word ‘stripping’ to cover any
of the work as above mentioned.” The language in sec-
tion 3(2) of the GCIU’s collective-bargaining agreement
provides that, “the Employer hereby agrees not to sign an
agreement with any other organization claiming jurisdic-
tion over the operation of any devices connected with
offset platemaking, camera operation, all darkroom work,
stripping opaquing and platemaking.”
In these circumstances, we find that the collective-
bargaining agreements do not favor employees repre-
sented by either union.
2. Employer preference
At the hearing and on brief, the Employer states that its
preference is to have the work in dispute performed by
an employee represented by the GCIU. However, as also
noted, the Employer’s stated preference is not based on
any of the traditional factors, such as skills or efficiency
of operations, that the Board often uses in making an
award of the disputed work.5 To the contrary, the Em-

and so requests the Board to legitimize that claim. This is underscored
by the fact that no party to the dispute argued that this was representa-
tional and that the notice be quashed. All parties to the dispute viewed
this as a jurisdictional matter. Contrary to the dissent, this dispute,
unlike that in Dearborn Village, 331 NLRB No. 27 (2000), is not
merely over what union will represent the employee (Giaccio) currently
performing the work. Rather, CTU has confirmed that it seeks the
work in dispute for an employee it would represent, which may not be
Giaccio. Thus, we do not have a representational dispute but clearly a
jurisdictional dispute.
5 See Jack Ebert & Co., 226 NLRB 242 (1976) (an employer’s as-
signment of disputed work will typically be based on the following
factors: industry practice, relative skills involved, the economy and
efficiency of operation, and safety factors). See also Teamsters Local
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 848
ployer admits that its preference is based on its unilateral
decision to place a newly hired employee in what it per-
ceived to be a “stronger, better union.”
The Board generally gives considerable weight to an
employer’s uncoerced preference in making work as-
signment awards.6 However, this considerable weight is
accorded because an employer’s preference is typically
based on legitimate, traditional factors relevant to award-
ing work in dispute.7 The Employer’s purported concern
that a new employee belong to a “stronger, better union”
cannot serve as a basis for the Employer’s preference.
Thus, we find under these unique circumstances that the
Employer’s stated preference does not favor awarding
the disputed work to the employees represented by the
GCIU.
3. Past practice
From 1970 until 1997, only members of the CTU per-
formed the stripping work. Although two of these mem-
bers were employers, a third one (Trenn) was a statutory
employee. No stripper was a member of the GCIU. The
past practice changed in 1997 when the Employer unilat-
erally assigned stripping work to Giaccio. This assign-
ment was disputed by the CTU as soon as it learned
about it. That assignment is the dispute in this case. In
these circumstances, the past practice favors the employ-
ees represented by the CTU.
4. Area and industry practice
The GCIU and the CTU both provided evidence that,
in the Cincinnati area, each union represents employees
that perform stripping work. Local 508M represents a
greater number of bargaining units performing stripping
work and it also represents some 1500 employees com-
pared with the 100 employees the CTU represents. Fur-
thermore, Local 508M’s geographical jurisdiction is con-
siderably broader than that of the CTU. There was no
substantiated testimony as to either union’s jurisdiction
outside of the Cincinnati area. Since both unions per-
form the disputed work in the Cincinnati area, this factor
favors neither group of employees.
5. Relative skills and training
Neither group of employees has an advantage with re-
gard to skills or training. Both unions provide a four-
year apprenticeship but neither provides skill-training
programs. Further, Michael Berning stated that neither
union’s members possess greater skills in performing

610 (Valley Plate Glass Co.), 196 NLRB 1140 (1972), and Iron Work-
ers Local 380, 267 NLRB 284 fn. 8 (1983).
6 See, e.g., Holt Cargo, 309 NLRB 377, 381 (1992).
7 See, e.g., Hudson General Corp., 326 NLRB 62 (1998). In Hudson
to determine the weight to be accorded to employer preference, the
Board examined whether that preference was supported by other tradi-
tional factors relevant to making an award in a jurisdictional dispute.
Though the majority and dissent disagreed on whether other traditional
factors supported the employer preference, all agreed that the relevant
inquiry involved reviewing traditional factors.
stripping work. This factor does not favor the employees
represented by either union.
6. Economy and efficiency of operations
Michael Berning testified that it was his belief that
having all employees under one union would provide
better communication and greater efficiency.8 However,
Michael Berning admitted that neither Union’s employ-
ees works more efficiently or economically than the
other, nor would production be impacted by awarding the
disputed work to one group of employees rather than the
other. This factor favors neither group of employees.
7. Joint board determinations
At S. Rosenthal & Company in the early 1990s there
was a dispute in the Cincinnati area regarding jurisdic-
tion over preparatory work between the CTU and what is
now Local 508M. The Board awarded the work to em-
ployees represented by the GCIU. It is unclear whether
this preparatory work included stripping. Since it cannot
be determined what work was awarded this factor does
not favor the employees represented by either union.
Conclusions
After considering all the relevant factors, we conclude
that employees represented by Cincinnati Typographical
Union, Local 3/CWA 14519, AFL–CIO are entitled to
perform the work in dispute. We reach this conclusion
relying solely on the Employer’s past practice. As noted
earlier, under the unusual circumstances of this case, we
find that the Employer’s stated preference insufficient to
outweigh the Employer’s past practice. In making this
determination, we award the work to the employees rep-
resented by Cincinnati Typographical Union, Local
3/CWA 14519, AFL–CIO, not to that union or its mem-
bers. The determination is limited to the controversy that
gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of Jos. Berning Printing Company repre-
sented by the Cincinnati Typographical Union, Local
3/CWA 14519, AFL–CIO are entitled to perform pre-
press preparatory work involving the stripping of mate-
rial for camera work at the Cincinnati, Ohio facility.
2. Graphic Communications International Union, Lo-
cal 508M, O-K-I, AFL–CIO is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force Jos.
Berning Printing Company to assign the disputed work to
employees represented by it.
3. Within 14 days from this date, Graphic Communica-
tions International Union, Local 508M, O-K-I, AFL–CIO
shall notify the Regional Director for Region 9 in writing
8 On cross-examination Michael Berning, president of the Employer,
admitted that the Employer had no communications problems between
its CTU represented strippers and its employees represented by the
GCIU.
GRAPHIC COMMUNICATIONS WORKERS LOCAL 508M (JOS. BERNING PRINTING) 849
whether it will refrain from forcing the Employer, by
means proscribed by Section 8(b)(4)(D), to assign the
disputed work in a manner inconsistent with this deter-
mination.

MEMBER HURTGEN, dissenting.
I conclude that this case presents a representational is-
sue rather than a jurisdictional dispute. I would therefore
quash the 10(k) notice.
Until 1997, the Employer’s stripping work had been
performed by an employee (Mark Trenn) represented by
the Communications Typographical Union, Local
3/CWA 14519, AFL–CIO (CTU). In 1997, the Em-
ployer hired a new employee (Tom Giaccio) and placed
him in a unit represented by the Graphic Communica-
tions International Union, Local 508M, AFL–CIO
(GCIU). On learning of this, CTU filed a grievance.
Significantly, the grievance claims that Giaccio was
placed in the wrong bargaining unit. GCIU threatened to
strike if the grievance changed the status quo.
Based on the above, it is clear that the dispute is about
the unit placement of Giaccio. Thus, the dispute is repre-
sentational, rather than jurisdictional. That is, in a juris-
dictional dispute, the parties have a dispute as to which
group of employees should be assigned the work. By
contrast, in a representational dispute, the parties have a
dispute as to the unit in which a given employee or em-
ployees are to be placed. In the instant case, the dispute is
about the unit in which Giaccio is placed. Neither the
GCIU nor CTU is quarreling about the general work of
stripping. For example, both are content to leave Trenn in
his stripping job. The CTU never requested that Giaccio
be removed. CTU requested only that the Board place
Giaccio in the CTU unit. Thus, the parties simply dis-
agree about the unit in which Giaccio is to be placed.
This case is analogous to Dearborn Village, 331 NLRB
No. 27 (2000), where the Board determined that a dispute
was representational, rather than jurisdictional. In Dear-
born Village, three employees were hired to shingle roofs.
Subsequent to their hire, two unions disputed which union
would represent the employees currently performing the
shingling work. The Board held that since the dispute did
not involve the assignment of work to one particular
group of employees over another, the dispute was not
jurisdictional within the meaning of Section 8(b)(4)(D).
In other words, the dispute in Dearborn Village, as in the
instant case, was over which union would represent par-
ticular employee(s).
In support of their view that the dispute is jurisdic-
tional, my colleagues point to a statement in a post-
hearing brief to the Board. Apart from the fact that
statements in a brief are not evidence, I note that the
statement itself does not state that the work should be
taken away from Giaccio and given to employees repre-
sented by CTU. Rather, the statement says only that the
work should be given to the CTU itself. This language is
representational, not jurisdictional.
My colleagues also note that the CTU complained that
Giaccio was “doing our work.” However, this was sim-
ply a way of saying that the work was the unit work of
CTU. Thus, CTU wants the work in its unit. As the ma-
jority concedes, this can be accomplished with or without
Giaccio in the job.
Finally, my colleagues observe that no party seeks to
quash the notice. However, before the Board can decide
the merits of a jurisdictional dispute, the Board must first
decide that there is reasonable cause to believe that there
is such a dispute. See Dearborn Village, supra.
Accordingly, inasmuch as this case does not present a
jurisdictional dispute, I would quash the notice.