International Typographical Union

National Labor Relations Board - Board Decisions

Sep 9, 1958

121 N.L.R.B. 793 (N.L.R.B. 1958)

INTERNATIONAL TYPOGRAPHICAL UNION 793
As indicated above, the Intervenor in its bulletin of April 2 claimed
that, during the 5-year period of its greatest wage gains and working
conditions, it had 58 successful negotiations and only 2 strikes The
Employer in its letter of April 8, challenged the accuracy of the
Intervenor's claim, stating that between the 2 unions involved (Peti-
tioner as well as Intervenor) there had been 13 strikes in the last
5 years The Intervenor's bulletin of April 9 clearly limits its claims
to strikes resulting from negotiations since the Virtue strike, which
was in 1953, thereby eradicating any possible misinterpretation that
the bulletin of April 2 was referring to strikes other than those result-
ing from negotiations Thus, the Intervenor's statement that it was
involved in only 2 strikes resulting from negotiations is substantially
true Actually, it appears that it was involved in 3 strikes resulting
from negotiations since the Virtue strike One of these strikes, how-
ever, the Kauffman strike, was contempoi aneous with the Virtue strike
This leaves a possible discrepancy of but one strike resulting from
negotiations r, In view of the foregoing, we find that the strike in-
formation in the Intervenor's bulletin was substantially true, and
neither so misleading or inaccurate as to have impaired the employees'
free choice in the election 6 Accordingly, we hereby adopt the Re-
gional Director's recommendations and overrule the Employer's
objections We also deny the Employer's request to set the election
aside, or in the alternative, to order a hearing
As the tally shows the results of the election are inconclusive, we
direct a runoff election with the Intervenor and "no labor organiza-
tion" as the choices on the ballot
[The Board remanded the case to the Regional Director ]
5 The Filbai and Capital CaSunet strikes wee for organaxatUonat purposes
e See Herder's Incorporated, 114 NLRB 751
International Typographical Union, AFL-CIO and Members of
its Executive Council: International Typographical Union,
AFL-CIO, Local 165, and its Scale Committee and Worcester
Telegram Publishing Company, Inc. Case No 1-CD-49 Sep-
tember 9) 1958
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act which pro-
vides that "Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph 4 (D) of
Section 8 (b), the Board is empowered and directed to hear and
determine the dispute out of which such unfair labor practice shall
have arisen "
121 NLRB No 101
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 2, 1957, Worcester Telegram Publishing Company,
Inc., herein called Worcester Telegram or Employer, filed with the
Regional Director for the First Region a charge against International
Typographical Union, AFL-CIO, and Members of its Executive
Council, and against International Typographical Union, AFL-CIO,
Local 165, and the latter's Scale Committee, herein jointly called
Respondents, alleging that the Respondents had engaged in and were
engaging in certain activities proscribed by Section 8 (b) (4) (D) of
the amended Act. It was charged, in substance, that the Respondents
had induced and encouraged the employees of the Worcester Telegram
to engage in a strike or concerted refusal in the course of their employ-
ment to handle or work on goods with an object of forcing or requir-
ing the Worcester Telegram to assign particular work to employees
who are members of Respondent Unions rather than to employees in
another trade, craft, or class.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.79 and 102.80 of the Board's Rules and Regulations, Series 7, the
Regional Director investigated the charge and provided for an appro-
priate hearing upon due notice to all parties. The hearing was held
before I. L. Broadwin, hearing officer, on February 24 and 25, March
25, April 1, and May 16, 1958. All parties appeared at the hearing
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
The rulings of the hearing officer made at the hearing are free from
prejudicial error and are hereby affirmed. The Respondents and the
Worcester Telegram filed briefs with the Board.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
The Respondents have requested oral argument. The request is
hereby denied because the record and the briefs adequately present
the issues and the positions of the parties.
Upon the entire record in the case, the Board finds :
1. The Worcester Telegram is engaged in the publication, sale,
and distribution of newspapers in the Worcester, Massachusetts, area.
During the past year, the Worcester Telegram, in the course and
conduct of its publishing operations, held membership in, and sub-
scribed, to, various interstate news services, including United Press
Association and Associated Press, advertised nationally sold products,
and had gross revenue from its operations in excess of $500,000. We
find that the Worcester Telegram is engaged in commerce within the
meaning of the Act.
INTERNATIONAL TYPOGRAPHICAL UNION 795
2. International Typographical Union, AFL-CIO, and Interna-
tional Typographical Union, AFL-CIO, Local 165, are labor organi-
zations within the meaning of the Act.
3. The alleged dispute :
A. The Facts
The Respondent Unions have represented Worcester Telegram em-
ployees in collective bargaining for many years. The Unions' last
written contract with Worcester Telegram covered composing room
employees and expired December 31, 1954.. Thereafter, about June
or July 1956, the contracting parties instituted a series of bargaining
meetings for the purpose of reaching a new written bargaining agree-
ment. Several months after the start of those meetings Respondent
Local 165 submitted a written contract proposal containing a clause
setting forth the Local's proposed work jurisdiction. The first portion
of the proposed clause was basically the same as a work jurisdiction
clause which was included in the expired December 1954 agreement;
the latter portion of the proposal contained work jurisdiction cover-
age not previously . set forth in the Respondents' contracts with the
Worcester Telegram. The pertinent new portions of the work juris-
diction proposal were, as follows :
Jurisdiction of the Union . . . includes classifications such
as:. . . operators and machinists on all mechanical devices, which
cast or compose ... film; operators of tape perforating machines
and recutter units for use in composing or producing type; oper-
ators of all phototypesetting machines (such as Fotosetter,
Photon, ...) ; employees engaged in proofing, waxing and paste-
makeup with reproduction proofs, processing the product of
phototypesetting machines, including development and waxing;
paste-makeup of all type, hand-lettered, illustrative, border and
decorative material constituting a part of the copy ; ruling, photo-
proofing; correction, alteration, and imposition of the paste-
makeup serving as the completed copy for the camera used in the
platemaking process. Paste-makeup for the camera as used in
this paragraph includes all photostats and prints used in offset or
letterpress work and includes all photostats and positive proofs
of illustrations (such as Velox) where positive proofs can be sup-
plied without sacrifice of quality or duplication of efforts. The
Employer shall make no other contract covering work as de-
scribed above, especially no contract using the word "stripping"
to cover any of the work above mentioned.
With respect to the new portion of the proposed jurisdiction clause,
it appears that the Employer's artists, who work in its art and adver-
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tising departments and are not represented by the Respondents, have
for about 15 years, been performing operations which the Employer's
officials refer to as paste-makeup (or paste-up), stripping, and ruling.
Paste-makeup, as performed in the Employer's operation, is "an
assembly of art work, illustrations, border work, ruling, type matter,
reproduction proofs of type matter, to assemble this all on a page or
partial page to go to the camera to be photographed by photo-
engravers"; stripping is the removal of incorrect type and insertion,
by pasting, of correct type on a paste-makeup page; and ruling is the
underlining or line bordering, vertically or horizontally, on a,paste-
makeup page. None of the remaining types of operations set forth
in the new portion of the proposed work jurisdiction clause was being
performed by employees of the Employer at the time the proposal was
made.
About May 1957, the president of Respondent Local 165 and Em-
ployer officials began to discuss having composing room employees
perform some of the paste-makeup operations which the artists were
then doing. The Respondents claimed the paste-makeup work for the
composing room employees on the theory that it was an operation
which was a substitute for composing room processes. Pursuant to
these discussions, it appears that the Employer orally and informally
"agreed" to give to the Respondents' members the paste-makeup work
involving reproduction proofs of type which had previously been com-
posed in the composing room. Such work was to be started by the
Respondents' members after they became qualified to do it, and after
necessary building alterations involving the composing room were
completed. The Employer did not agree to give to the Respondents'
compositors paste-makeup work involving any lettering or illustra-
tions other than the compositors' own reproduction proofs.
About July 1957, the Respondent Local sent one of its members,
then working in the Employer's composing room, to a school operated
by the Respondent International for training in paste-makeup work.
When this employee returned to Worcester, the Respondents organized
a school; and the employee trained about 80 other members of the
Respondent Local in paste-makeup work.
Meanwhile, the parties continued their negotiations for a new writ-
ten contract. Meetings were held on November 26 and 27, 1957. At
those meetings the Respondents' officials, among other things, de-
manded Employer acceptance of the Respondents' work jurisdiction
proposal pertaining to paste-makeup because the Respondents "were
fighting for job security and this was a parallel or substitute process
for their conventional way of doing this type of work and, therefore,
they are entitled to have it made available to their membership." The
Employer rejected the demand because "the people presently em-
ployed in that type of work would have to have that work taken
INTERNATIONAL TYPOGRAPHICAL UNION 797
away from them in order to satisfy this Union demand or that it
would be necessary for them to join the Union in order to qualify for
the work."
At the November 27, 1957, meeting an Employer representative
stated that, "the stumbling block to a final contract . . . were, three
items principally: (1) the Union foremen clause; (2) the insistence
upon acceptance of the general laws of the I. T. U.; and (3) the so-
called jurisdiction clause." And a representative of the Respondents
replied, "In our opinion these clauses are legal. . . . We will not
withdraw these demands."
The Respondents' members went out on strike on November 29, i957.
They were picketing the Employer's plant at the time of the hearing in
this proceeding.
Since the commencement of the strike some of the Employer's non-
striking employees have started to use tape perforating machines,
another of the operations included in the Respondents' proposed-work
jurisdiction clause.
B. The Contentions of the parties
The Worcester Telegram contends that, by the above-described con-
duct, the Respondents violated Section 8 (b) (4) (D) of the Act. The
Respondents advance a number of contentions in support of the as-
sertion that their strike was not proscribed by the provisions of
Section 8 (b) (4) (D). Their basic assertion appears to be that their
strike was "to achieve a satisfactory agreement"; and that, to the
extent the strike was in support of the proposed work jurisdiction
clause, it was merely a demand that the Respondents' members con-
tinue to "perform certain work by whatever means performed."
Sequentially, they argue that such a demand did not require the Em-
ployer to reassign work from nonmembers of the Respondents to their
members.
C. Applicability of the statute
In a proceeding under Section 10 (k) of the Act the Board is
required to find that there is reasonable cause to believe that Section
8 (b) (4) (D) has been violated before proceeding with a determina-
tion of the dispute out of which the alleged unfair labor practice
has arisen.
As stated above, the essence of the Respondents' position is that the
purpose of their strike was "to achieve a satisfactory agreement."
They assert that they were striking to obtain Employer concessions on
about 15 economic issues which derived from their written contract
proposal. The Respondents also claim that the strike was partially
in protest against the Employer's failure properly to apply job
priority for employees as well as its refusal to comply with the Re-
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondents' requests for negotiation meetings. On the other hand, the
president of the Respondent Local testified that the work jurisdiction
clause was one of the issues on which the "Company and the Union
were apart." Indeed, the Respondents admit in their brief that, "at
the time of the strike," they were "in disagreement" with the Em-
ployer concerning the work jurisdiction clause of the proposed con-
tract. Accordingly, at least a portion of the Respondents' purpose in
striking was to resolve the "disagreement" over the work jurisdiction
clause by forcing or requiring the Employer to accept that clause. It
follows, therefore, that if the Respondents' work jurisdiction proposal
required the assignment of work to its members rather than to "em-
ployees in another labor organization or in another trade, craft, or
class," the Respondents' strike was for an unlawful object within the
meaning of Section 8 (b) (4) (D).
As noted above, the Respondents contend that the proposed work
jurisdiction clause was merely a 'demand that the Respondents' mem-
bers continue to "perform certain work by whatever means per-
formed." Implicit in this contention is the claim that their members
were, in fact, performing all the work operations described in the
proposal. The record does not support the Respondents' claim. The
record shows with respect to the paste-makeup operations included in
the Respondents' proposal, that artists in the Employer's art and
advertising departments have, for about 15 years, been performing
paste-makeup work.' Those artists were not members of, or repre-
sented by, the Respondents?
The record thus establishes that the Respondents struck with an
object of forcing or requiring the Employer to assign to the Respond-
ents' members working in the composing room the paste-makeup work
which the Employer had assigned to artists who were not members of
the Respondents and who had been performing the paste-makeup
operations. Apparently anticipating that the record establishes these
facts, the Respondents argue, in the alternative, that 'the amount of
i The Respondents assert that the Employer was confused about, and misinterpreted
the scope of, the term "paste -makeup" used in the Respondents ' work jurisdiction proposal.
The basis for this assertion apparently, is the Employer 's occasional use of the term
"paste-up," which the Employer used, for example , in the charge filed herein . However,
the record establishes that the only confusion or misinterpretation involved was the
appropriate term to be used to describe particular work functions . Both the Respondents'
representatives and the Employer 's established by their record testimony that the specific
work, which the two slightly varying terms were intended to describe , was one and the
same Accordingly , we reject the Respondents ' assertion.
2 The Respondents contend that the paste -makeup work which the artists had been
performing for 15 years was experimental . They also contend that the proposed work
jurisdiction clause referred to permanent paste-makeup . Upon these , contentions the
Respondents request the Board to find that they made no present demand for the re-
assignment of work to their members. The record rebuts these contentions. The
Employer 's officials testified that the paste -makeup work was done by the artists on a
permanent basis. Moreover , the performance of such work on an experimental basis for
the extended period of 15 years is inherently unlikely . Accordingly , we find that the
Respondents ' demand for the Employer 's paste-makeup work contained in the work juris-
diction proposal and the strike in support thereof constituted a present demand for work.
INTERNATIONAL TYPOGRAPHICAL UNION 799
work in dispute was de minimis for the purposes of 8 (b) (4) (D).
Related to this argument is the Respondents' assertion that they did
not seek the discharge of any employees. Whether a union's conduct,
which is intended to force the reassignment of work within the
meaning of Section 8 (b) (4) (D), will require the actual discharge
of those employees who are deprived of the disputed work is com-
pletely irrelevant to the resolution of an 8 (b) (4) (D) issue. In
other words, a finding that the Employer would or would not have
discharged its artists, if it had acceded to the Respondents' unlawful
pressure herein, is not determinative of the question whether there is
reasonable cause for finding that the Respondents violated 8 (b) (4)
(D). Moreover, the Board, in its judgment, rejects the Respondents'
de minimis argument.
On the basis of the foregoing, and the entire record, we find that
there is reasonable cause to believe that the Respondents induced or
encouraged the Worcester Telegram's employees to engage in a strike
with an object of forcing or requiring the Worcester Telegram to
assign paste-makeup work to members of the Respondents rather than
to other employees of the Worcester Telegram-the artists-who were
not members of the Respondents, thereby violating Section 8 (b) (4)
(D) of that.' We find, accordingly, that the dispute involved in'this
proceeding is properly before the Board for determination Linder
Section 10 (k) of the Act.
D. Merits of the dispute
When the Respondents struck to require that their members be
assigned the Employer's paste-makeup work, the Employer's artists,
who were not members of the Respondent, were performing the work.
The dispute, therefore, was, one over the assignment of work by an
employer to certain of its employees who were not members of the
Respondents rather than to members of the Respondents. - An em-
ployer is free to make such a work assignment free of strike pressure
by a labor organization unless the employer is failing to conform to
an order or certification of the Board determining the bargaining rep-
resentative for employees performing the work involved.4 There is
no evidence, in this case, that the assignment of work by the Worcester
Telegram was in contravention of any Board order or certification.
The Respondents contend, however, that, by the oral "agreement"
they reached with the Employer in May 1957, the Employer, after
8 It is therefore unnecessary to decide herein whether there is reasonable cause to believe
that another object of the Respondents ' strike-that is, the assignment to the Respond-
ents' members of tape perforating machine operations , or of any other work, not being
performed by any of the Employer ' s employees at the time the strike started on Novem-
ber 29, 1957-also violated Section 8 ( b) (4) (D) of the Act
* International Longshoremen's and Warehousemen's Union, Local No 16, CIO ( Juneau
Spruce Corporation ), 82 NLRB 650.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lawful collective bargaining, assigned the disputed paste-makeup
work to the Respondents' members. They assert that the portion of
their proposed work jurisdiction clause which referred to paste-
makeup operations was merely a written incorporation of the oral
"agreement." They argue, in substance, that the paste-makeup
work was no longer in dispute when the strike was called at the end
of November 1957. This argument seems to conflict with the Re-
spondents' above-mentioned admission that there was still "disagree-
ment" over the proposed work jurisdiction clause "at the time of the
strike." But in any event, the argument is based upon selected record
facts.
The entirety of the record shows that the oral "agreement" was far
from definitive or conclusive. The Local's president, who negotiated
the oral "arrangement" for the Respondents, testified that "the whole
thing was up in the air as to what exactly would end up as the paste-,
makeup process in [the Respondents'] hands." He also testified, with
respect to the effectiveness of the oral "agreement," that until a writ-
ten contract was actually signed with the Employer the Respondents
"were bound by nothing." However, irrespective of the ambiguity
and inconclusiveness of the oral "agreement," it is clear that the Em-
ployer conceded at the very most to assign to the Respondents' mem-
bers only paste-makeup work of the reproduction proofs originating in
the composing room. In contrast, as shown by the testimony of the
Local's president and the language of the Respondents' proposal itself,
the Respondents actually wanted the Employer to assign to their mem-
bers all paste-makeup, not just that based upon composing room
reproduction proofs e
In such circumstances, we find that the Employer did not assign the
disputed paste-makeup work to the Respondents and that the Re-
spondents do not have a contractual right to that work.
The Board finds, accordingly, that the Respondents were not and
are not lawfully entitled by means prescribed by the statute to force or
require the Worcester Telegram to assign paste-makeup work to the
Respondents' members rather than to the employees assigned by the
Worcester Telegram to perform such work.
E. Determination of dispute
Upon the basis of the foregoing findings and the entire record in
this case, the Board makes the following determination of dispute
pursuant to Section 10 (k) of the Act.
c Also revealing in reference to the merit of the Respondents ' contention that the
proposed work jurisdiction clause was merely a written incorporation of the May 1957
oral "agreement" is the fact that the Respondents submitted the proposed contract clause
to the Employer almost a year before the parties had reached the oral "agreement" in
question.
9 The Respondents contend that "the case at bar should be excluded from the 10 (k)
determinations, for the NLRB cannot meet the mandate of the court in N. L . R. B. v.
KENNECOTT COPPER CORPORATION 801
1. International Typographical Union, AFL-CIO, Members of its
Executive Council, and International Typographical Union, AFL-
CIO, Local 165, its Scale Committee, and their respective agents are
not and have not been lawfully entitled to force or require Worcester
Telegram Publishing Company, Inc., to assign the work in dispute to
members of said labor organizations, rather than to'that Company's
employees of its choice.
2. Within ten (10) days from the date of this Decision and Deter-
mination of Dispute, the Respondents shall notify the Regional Direc-
tor for the First Region of the National Labor Relations Board, in
writing, whether or not it accepts this determination of the dispute
and whether or not it will refrain from forcing or requiring Worcester
Telegram Publishing Company, Inc., to assign the work in dispute to
members of the -Respondents rather than to employees of the Com-
pany's choice by means proscribed by Section 8 (b) (4) (D) of -
the Act.
United Association of Journeymen & Apprentices of the Plumbing Industry ( Frank Hake),
218 F 2d 476 ( C. A. 3)." The Respondents have not advanced reasons to support this
contention . Moreover , this Board respectfully disagrees with the Court of Appeals'
opinion in the Hake case. See Local 16, International Longshoremen's and Warehouse-
men's Union ( Denali-McCray Construction Company ), 118 NLRB 109, footnote 4.
Kennecott Copper Corporation , Ray Mines Division and Glen
Akers. Case No. 01-CA-2597. September 9, 1958
DECISION AND ORDER
On October 8, 1957, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief. The Respondent
also filed exceptions herein.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent consistent with our decision
herein.
The Trial Examiner found, and we agree, that the Respondent's
discharge of Glen Akers, O. C. Largent, John C. Segraves, Floyd F.
Frazier, and Arnold C. McGuyer was not violative of the Act.
121 NLRB No. 102. _
48792G-59-vol. 121-52