Intl. Typographical Union, Local 49

National Labor Relations Board - Board Decisions

Apr 10, 1973

202 N.L.R.B. 1028 (N.L.R.B. 1973)

1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Typographical Union, Local No. 49,
AFL-CIO and The A. B. Hirschfeld Press, Inc.
and Graphic Arts International Union , Local No.
276
Graphic Arts International Union , Local No. 276 and
The A. B. Hirschfeld Press , Inc. and International
Typographical Union, Local No. 49, AFL-CIO.
Cases 27-CD-145 and 27-CD-148
April 10, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
place of business located at 685 Speer Boulevard,
Denver, Colorado, where it engages in commercial
printing. It regularly sells directly to customers
located outside the State of Colorado goods valued
in excess of $50,000 annually. Accordingly, we find
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find , that ITU and
GAIU are labor organizations within the meaning of
Section 2(5) of the Act.
This is a consolidated proceeding under Section
10(k) of the National Labor Relations Act, as
amended, following the filing of charges by The A. B.
Hirschfeld Press, Inc., herein called the Employer.
The charge against International Typographical
Union, Local No. 49, AFL-CIO, herein called ITU,
alleges that ITU violated Section 8(b)(4)(D) of the
Act by engaging in certain proscribed activity with
an object of forcing or requiring the Company to
assign certain work to employees represented by ITU
rather than to employees represented by Graphic
Arts International Union, Local No. 276, herein
called GAIU. The charge against GAIU involves the
same work dispute and alleges that GAIU engaged in
like illegal conduct for the purpose of forcing the
Company to continue the assignment of the work to
employees represented by it instead of to employees
represented by ITU.
A duly scheduled hearing was held before Hearing
Officer Merrill M. McLaughlin in Denver, Colorado,
on November 21 and 22 and December 14, 1972.1 All
parties appeared at the hearing and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues. Thereafter, briefs were filed on behalf
of the Employer, ITU, and GAIU.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated and the record shows that
the Company is a Colorado corporation with its sole
III. THE DISPUTE
A. The Work in Dispute
The disputed work involves the pasteup of the
proofs produced by recently acquired phototypeset-
ting equipment , a Fototronic 1200 and a V.G.C.
Phototypositor.
B. Background and Facts of the Dispute
The Employer's only shop employs 280 persons. As
a commercial printing shop, Employer processes a
product beginning with markup through its compos-
ing room, preparatory department and camera, press,
bindery function, and on to completion. Hirschfeld's
voluntary recognition of ITU in the mid-1950's led to
a continuing contractual relationship covering com-
posing room employees.
The Cuthbertson Type Setting Company, a sepa-
rately owned and operated firm, rents a room from
Hirschfeld adjoining the latter's composing room.
Cuthbertson's employees, all of whom are engaged in
the typesetting function, are covered by the same
ITU-multiemployer contract as Hirschfeld's compos-
ing room employees. Cuthbertson uses five hot metal
process Intertype machines. In this process the
machine simply drops molten metal into forms, one
line at a time.
"Copy" from Employer's customers is sent. to
Cuthbertson and, under contract with Employer,
Cuthbertson does the typesetting. The type is then
taken to Employer's composing room employees who
are engaged in makeup, which involves physically
arranging the type slugs in proper order and spacing.
The composing room employees run a print, proof-
read the galley, and make corrections. Thereafter, the
type is ready either for final lockup and direct use on
the letterpress or for further processing by making a,
final reproduction proof ("repro" proof) on the proof
Except as noted, all dates are 1972.
INTL. TYPOGRAPHICAL UNION, LOCAL 49 1029
press. The composing room employees also operate
the Employer 's Ludlow machines , which , like Cuth-
bertson 's Intertype machines , use the hot metal
method . The "repro" proofs are sent on to Hirsch-
feld's Art Department employees.
Since certification by the Board in April 1968,
GAIU has been the exclusive bargaining representa-
tive of the Employer 's Art Department employees.
GAIU represents these employees and the litho-
graphic production employees under a single con-
tract . The present contract expires June 30, 1974. The
Art Department employees produce creative art and
the mechanical paste-makeup . The latter involves
cutting, properly placing, and pasting or gluing the
components parts (i.e., their creative art, materials
sent by customers and the "repro" proofs, and velox
proofs received from the composing room) on the
mechanical2 in order that a proof may be obtained
by photographing the pasted-up form.
In the spring of 1972 Cuthbertson purchased a
Fototronic 1200 machine , and in the summer the
Employer purchased a V.G.C. Phototypositor. These
are keyboard actuated machines which produce a
tape from which reading matter is printed on paper.
These cold metal process machines perform the
functions of composing and typesetting . They make
a proof known as a velox print or proof which is used
like a reproduction proof produced in the hot metal
process. Both firms have nonetheless retained and
made full-time use of their hot metal typesetting
equipment , and employees represented by ITU
continue to run them . Proofs whether produced by
hot or cold metal process require pasting up if they
are not camera ready , and most of the proofs require
pasting up on the mechanical.
By August 1972, Cuthbertson' s Fototronic 1200
and Employer 's V.G.C. Phototypositor were installed
and put into preliminary use. The major job to be
run on them at the time of the hearing was TV
Guide, the Employer 's customer . TV Guide would
supply the tapes which activate the Phototronic
machine which in turn produces velox proofs. These
proofs are then put on a mechanical for processing as
described above. Beginning about November 1971
through August 1972, the Employer discussed the
assignment of the work in dispute with both the ITU
and GAIU and each Union claimed the work.
Employer held nine meetings with ITU to discuss
the work in dispute. At the November 3, 1971,
meeting Jack Boris , ITU's International representa-
tive , stated that the product of the Phototronic
machine would either have to be furnished by the
z A mechanical is a heavy piece of index or tag stock.
Although a complaint may not be based on these statements because of
Sec. 10(b); they are noted as background to cast light on ITU's subsequent
action.
Cuthbertson Company to Hirschfeld Company ready
for the camera, i.e., the paste-makeup having been
done by Cuthbertson's composing room employees,
or else the velox proof of the Phototronic machine
furnished to Hirschfeld would have to be pasted up
by Hirschfeld's composing room employees. Boris
added that if this accommodation were not made the
Company would be relieved of its contract with ITU,
which the Employer understood to be a threatened
work stoppage. At the meeting the next day, Boris
told the Employer, without explanation, that if the
ITU were not assigned the work Employer would no
longer receive .the tapes from TV Guide.3 The last
relevant meeting took place August 15, 1972. While
Bill Austin, president of the ITU local, denied
making any threats at this time , the Company's
witnesses testified that Austin repeated Boris' state-
ment of November 4, 1971, and further said ITU was
attempting to negotiate a supplemental agreement
with Cuthbertson concerning the Employer's TV
Guide tapes and,, if these negotiations did not result
in the paste-makeup function being performed by
Cuthbertson's composing room employees, members
of ITU, or by Hirschfeld's composing room employ-
ees, ITU would not allow Cuthbertson to receive the
outside tape. As the TV Guide work was the first of
the printing to be done by the cold metal process
through the new machines, if the tapes were not
received, the Employer could not use the process and
there would, be no work to assign.
Also on August 15, 1972, the Employer wrote to
the competing labor organizations informing them
that it was assigning the work to the Art Department
pasteup employees represented by GAIU. On August
23, 1972, ITU sought by court action to compel
arbitration but the court dismissed the proceeding on
the grounds that GAIU was not a party to the
contract and that the Board had jurisdiction under
Section 10(k) of the Act.4 On September 8, the
secretary-treasurer of GAIU wrote the Employer:
.. . we want to make sure that you keep in
mind the very strong feeling of our union . .
that paste-up work has regularly been done by
members of our bargaining unit . . . . Any at-
tempt to deprive them of that work would be in
gross violation of their well estiblished [sic] rights.
We do not, as you know, engage in the tactics
of loose threats of strike or coercive action. . . .
We do not know what your plans and inten-
tions may be with respect to the coercion and
pressure tactics of the ITU. We feel however that
it is only fair to advise you that if the paste-up
work for the camera, including the paste-up of
material produuced [sic] by the phototypesetter
4 Civil Action No. C-4259, D.C. Colo., October 19, 1972.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and headliner equipment, is not assigned accord-'
ing to the requirements of our contract, our
members may be expected to feel freed from any
no-strike obligation of that contract and maybe
[sic] expected to take appropriate action to
protect their legitimate interests. We are sure that
they would not like to engage in acts of economic
coercion, but when faced with such threats by
ITU, they will undoubtedly feel compelled to
protect themselfs [sic].
It is undisputed and the parties stipulated they are
not bound to the National Joint Board for the
Settlement of Jurisdictional Disputes and there is no
contract provision for the resolution of jurisdictional
disputes which would bind all parties.
C. The Contentions of the Parties
The Employer's position is that its assignment of
the work to the Art Department employees repre-
sented by Respondent GAIU should not be changed
because it conforms to its own area and industry
practice and is based on efficiency, economy,
probable loss of jobs by GAIU unit employees, and
the comparative skills of the employees in the two
units. GAIU claims that the work is traditional work
for lithographic 'employees; that the assignment is
supported by area, industry, and the Employer's past
practice; and that Art Department employees pos-
sess superior skills and the technical equipment
necessary to accomplish the full range of tasks
required by the work. ITU contends that it made no
threats and the notice in Case 27-CD-145 should be
quashed. On the merits, however, ITU argues that
the work should be assigned to its unit because the
new phototypesetting equipment replaced traditional
hot type equipment, the pasteup work had been done
to some extent by employees in its unit, area and
industry practice favor assignment to employees
represented by it, and there would be a loss of
composing room jobs if the work is not assigned to
that unit.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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) has been violated
and (2) the parties have not agreed upon a method
for the voluntary adjustment of the dispute.
As described above, there is a conflict of testimony
5 International Association of Bridge, Structural and Ornamental Iron
Workers, Local 348, AFL-CIO (Dick Tile and Marble Company, Inc.), 193
NLRB 769.
6 N. L.R. B. v. Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO (Columbia
Broadcasting System), 364 U.S. 573.
concerning alleged threats by ITU. The Company
stated that ITU threatened that Employer would not
receive TV Guide tapes because of the performance
of the disputed work by Art Department employees
who are in the unit represented by GAIU, and ITU
denies this. However, in a proceeding under Section
10(k), the Board is required only to find reasonable
cause to believe that Section 8(b)(4)(D) has been
violated and need not conclusively resolve conflicts
in testimony.5 It is undisputed that GAIU threatened
to cause a work stoppage with the object of requiring
the Employer to continue the assignment of the work
to employees represented by it instead of to employ-
ees represented by ITU. We also conclude there
exists no effective method for the voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act.
Upon the entire record, we find that there is
reasonable cause to believe that violations of Section
8(b)(4)(D) have occurred based on the conduct of
both the ITU and GAIU and that the 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 disputed work after giving
due consideration to various factors.6 The Board has
held that its determination in a jurisdictional dispute
is an act of judgment based on commonsense and
experience reached by balancing those factors
involved in a particular case.?
The following facts are relevant in making the
determination of the dispute before us.
1. The collective-bargaining agreements and
Board certification
The ITU's contract,8 article V, section 1 , defines
the Union's jurisdiction and classifications as includ-
ing, inter alia, "paste-makeup of all type" and
prohibits the employer from making any "other
agreement covering such work. . . ." Article V,
section 2, provides that should an employer begin to
use phototypesetting or paste-makeup , the resulting
paste-makeup will be performed by employees
covered . thereunder. However, this section also
recognizes and permits continuation of certain
"established practices" under which "paste-makeup
work utilizing reproduction proofs was performed"
by others, including certain "Employees in the art
department of certain employers." In recent negotia-
7 International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402.
8 Employer is a member of a multiemployer group which bargains and
has a contract with ITU. As noted above, ITU was voluntarily recognized
by this Employer in the mid-1950's.
INTL. TYPOGRAPHICAL UNION, LOCAL 49 1031
tions with the Employer, the ITU unsuccessfully
sought to delete the exception permitting continued
assignment of paste-makeup work to other classifica-
tions.
GAIU's9 contract recognizes it as the exclusive
representative • of "all lithographic production em-
ployees," and its jurisdiction is defined as including
"all work, processes and 'operations related to
lithography, offset . . .." The appendix of the
agreement includes a minimum wage rate for the
specific, classification "paste-up." GAIU was cert-
ified by the Board April 1968, for the unit of the
Employer's six Art Department employees, of whom
four perform only pasteup work, one does both
pasteup and art work, and one does only art work.
We find that this factor favors the position of
neither Union as we are unable to conclude, upon
examination of the pertinent provisions of their
contracts, that either expressly covers the work in
dispute. Nor does the mere fact of certification favor
an award of the work to GAIU.
2. Company, area, and industry practice
The Art Department employees of the Employer
have regularly done all the pasteup work with the
exception of a small portion thereof which has
historically been performed by the composing room
employees. The Employer assigned the work in
dispute to the Art Department employees. Area
practice shows that commercial printshops like
Employer have assigned the work to their art
departments. Composing room employees perform
pasteup in those concerns which have very little of
this work, or firms in a different branch of the
printing industry, or establishments which do not
have a separate art department or where the art
department employees are in the unit with and
represented by the same union representing compos-
ing room employees. Accordingly, we find company,
area, and industry practice favors the position taken
by GAIU and the Employer.
3. Economy, efficiency of operations, skills,
and possible job loss
The record shows that it would be more time
consuming to have pasteup done in two departments
based on whether it came from the new machine or
had historically been done by one unit or another.
The physical facilities, equipment, and materials
available to the Art Department employees make for
efficient performance of the operation, as they have
9 This is likewise a multiemployer contract with a group of which
Employer is a member.
10 We do not agree with the Employer's contention that the Board
should issue a broad order proscribing coercive conduct by ITU against
more space in which to work, better tools, and the
materials necessary for the full range of the job.
While the record shows that certain of the pasteup
functions have been performed by composing room
employees, and these are not in dispute, it is also
clear that such pasteup does not require the same
level of skill as is required by that done by the Art
Department employees. To reach the level of skill
possessed by the Art Department employees in
performing pasteup work, composing room employ-
ees would need time within which to train and this
would be an expense to the Employer. According to
the undisputed testimony of the Employer, if the
work is not assigned to Art Department employees,
certain of them will immediately lose their jobs. The
ITU contends that, if in the future the Employer
replaces its present hot metal equipment with cold
metal equipment, composing room employees would
lose jobs, as their work is primarily makeup.
However, the Employer denied it has any plans to
convert its operations within the next 5 years.
Accordingly, the ITU's argument concerning job loss
is based on speculation, and we can give it no weight.
Thus, we find economy, efficiency of operations,
skills, and probable job loss favor assignment to the
Art Department employees.
Conclusion
Upon the entire record in this proceeding, and
after full consideration of the relevant factors,
particularly, employer, area, and industry practice;
economy and efficiency of operation; skills; possible
impact on jobs of Art Department employees; and
the Employer's assignment and satisfaction with
their performance, we conclude that the Art Depart-
ment employees of the Employer who are represent-
ed by Graphic Arts International Union, Local 276,
AFL-CIO, are entitled to perform the work in
question, and we shall award the disputed work to
them. In making this determination, we .award the
work to the employees of the Employer who are
represented by Graphic Arts International Union,
Local 276, AFL-CIO, but not to that Union or its
members. Our present determination is limited to the
particular controversy which gave rise to this
proceeding.ro
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
Cuthbertson Company and others, inasmuch as the present case involves
only the Employer, and it is speculative whether Cuthbertson will engage in
pasteup work and, if it does , that ITU will claim such work.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
1. Employees of The A. B. Hirschfeld Press, Inc.,
at Denver, Colorado, who are currently represented
by Graphic Arts International Union Local 276,
AFL-CIO, are entitled to perform the paste-makeup
of velox proofs produced by the phototypesetting
equipment; i.e., Fototronic 1200 and the V.G.C.
Phototypositor.
2. International Typographical Union, Local No.
49, AFL-CIO, is not entitled, by means proscribed
by Section 8(b)(4)(D) of the Act to force or require
The A. B. Hirschfeld Press, Inc., to assign the
disputed work to employees represented by that
labor organization.
3. Within 10 days from the. date of this Decision
and Determination of Dispute, International Typo-
graphical Union, Local No. 49, AFL-CIO, shall
notify the Regional Director for Region 27, in
writing, whether or not it will refrain from forcing or
requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disputed
work to employees represented by it rather than to
employees currently represented by Graphic Arts
International Union, Local 276, AFL-CIO.