Lithographers and Photoengravers

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 464 (N.L.R.B. 1970)

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lithographers and Photoengravers International
Union, Local No. 24-P and The Beacon Journal
Publishing Company and Akron Typographical
Union, Local 182, International Typographical
Union, AFL-CIO. Case 8-CD-189
August 27, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
MCCULLOCH AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by the Employer, The Beacon Journal
Publishing Company, Akron, Ohio, alleging that
Lithographers and Photoengravers International
Union, Local No. 24-P,' had violated Section
8(b)(4)(D) of the Act. Pursuant to notice, a hearing
was held on April 2 and 3, 1970, in Akron, Ohio,
before Hearing Officer Arthur R. DePalma. All parties
appeared at the hearing and were afforded full oppor-
tunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the
issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings made by the
Hearing It I lLe; at the hearing, and finds that they
are free from prejudical error. They are hereby
affirmed. Briefs filed by the Beacon Journal Publishing
Company, the Photoengravers, and Akron Typograph-
ical Union, Local 182, International Typographical
Union, AFL-CIO,' have been duly considered.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Beacon Journal Publishing Company is an
Ohio corporation engaged in publishing a daily news-
paper, the Akron Beacon Journal, and has an annual
gross volume of business in excess of $1 million,
of which over $200,000 is derived from advertising
nationally sold products. The parties stipulated, and
we find, that the Employer is engaged in commerce
Hereinafter referred to as the Photoengravers
Hereinafter referred to as the Typographers
within the meaning of Section 2(6) and (7) of the
Act, and that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find, that the Lithog-
raphers and Photoengravers International Union,
Local No. 24-P, and the Akron Typographical Union,
Local 182, International Typographical Union, AFL-
CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The disputed work involves the assignment of the
cutting of masks used for colored overlays (rubylith
or amberlith) in the advertising department of the
Beacon Journal Publishing Company in Akron, Ohio.
The artists in the Employer's advertising department,
who are not represented by any union, now perform
the disputed work.
B. Background
The Employer, as heretofore indicated, is engaged
in the printing, publication, and distribution of a
daily newspaper at its plant in Akron, Ohio. The
Employer publishes color in both advertising and
editorial work, but, as noted above, the issue in
this case is limited to the assignment of the work
in the preparation of colored advertising.
The advertising department of the Akron Beacon
Journal consists of approximately 66 employees. The
artists' section of the advertising department has eight
artists and one supervisor. When an advertiser places
an ad in the newspaper, he either submits to the
advertising department of the Beacon Journal a pasted-
up layout of the proposed advertisement, or discusses
the ad with Beacon Journal artists, who make up
a sketch of the proposed ad. If a pasted-up layout
or sketch of the ad is submitted, it is sent to the
composing room where a pasteup of the ad is made
on lined paper. This pasteup is called a mechanical.
A copy of the mechanical is made and sent to the
advertising department artists. The artists then place
the rubylith material over the ad and cut the colored
part from the parts of the ad which are to be black
and white. The remainder of the ad, which is to
be in color, remains covered by the color part of
the material. The pasteup of the ad, with the rubylith
color overlays attached to it, is then returned to
the composing room. There, the color overlays are
185 NLRB No. 45
LITHOGRAPHERS AND PHOTOENGRAVERS
placed over the mechanical. The mechanical with
the attached color overlays is then sent to the photoen-
graving department, where a picture is taken of it
in order to make the color plates used in producing
the final product.
Prior to October 1968, when the Employer switched
from a "hot type" process of advertising copy to
a "cold-type" process operation, the amount of color
advertising was minimal, and the amount of work
expended in making color overlays was less than
8 to 10 hours per month. Since the advent of the
"cold-type" process operation, however, the artists
spend between 35 to 40 hours per month making
color overlays out of rubylith or amberlith material.
In July 1969, an arbitration was held involving
the Typographers and the Employer. The arbitrator's
opinion and award, issued on October 2, 1969, award-
ed the rubylith work to the Typographers. However,
the Photoengravers was never notified of the arbitra-
tion, and did not participate in it.
In the fall of 1969, the Photoengravers raised the
issue of the rubylith work, and advised the Employer
that if it followed the arbitration award serious prob-
lems would arise. By letter dated January 16, 1970,
the Photoengravers demanded the rubylith work as
work "traditionally performed" under its jurisdiction,
and advised that any attempt to shift the work away
from the Photoengravers would be resisted by
"appropriate means, including a strike."
C. The Contentions of the Parties
The Photoengravers contends, inter aha, that it
has primary jurisdiction over the disputed work
because of the jurisdictional clause in its contract
with the Employer, and, furthermore, that its members
have the knowledge and skills to do rubylith work,
as they are presently performing such work in the
Employer's editorial art department. The Typogra-
phers claims the disputed work on the basis of the
jurisdictional clause in its contract with the Employer,
adding that its members have the skills and knowledge
to do the work, and citing the decision of the arbitrator
who ruled that it is entitled to perform the disputed
work. The Employer takes the position that the artists
in its advertising art department should continue to
perform the disputed work, relying on their experience
and skills, the historic assignment of the work to
these employees, and the efficiency of operation factor,
which dictates that the work be performed by persons
as near to the customer as possible.
D. Applicability of the Statute
465
Before the Board may proceed with a determination
of dispute pursuant to Section 10(k) of the Act,
it must be satisfied that there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated.
The charge herein alleges a violation of Section
8(b)(4)(D) of the Act. The record shows that on
January 16, 1970, the Photoengravers warned the
Employer that assignment of the disputed work to
any other group of employees would be resisted by
"appropriate means, including a strike." We conclude,
under these circumstances, that there is reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred, and that the dispute is properly before
the Board for determination.
E. The 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 relevant factors.
The Board has held that its determination in ajurisdic-
tional dispute is an act of judgment based on common-
sense and experience, reached by balancing those
factors involved in a particular case.'
The following facts are relevant in making a deter-
mination of the dispute before us.
1. Collective-bargaining contracts
Article III, section 2, of the contract between the
Employer and the Photoengravers, which is effective
from December 1, 1969, to November 20, 1972, like
the predecessor contract which extended from Decem-
ber 1, 1966, to November 30, 1969, gives the Photoen-
gravers jurisdiction over the process of photoengraving
at the Employer's plant, including, inter alia, the
"making of masks for color separations." Article
I, section 3, of the contract between the Employer
and the Typographers, which is effective from October
1, 1967, to September 30, 1970, gives the Typographers
jurisdiction over all composing room work, including
"Paste makeup for the camera," which, it is stated,
"must be completed and ready for the plate making
camera before being sent to any other department."
As heretofore indicated, the artists in the Employer's
advertising art department, who are assigned the dis-
puted work, are not represented by any union, and
hence, have no contract with the Employer. Under
the foregoing circumstances, the Photoengravers and
the Typographers appear to have some colorable right
' International Association of Machinists, Lodge No 1743 (JA
Jones Construction Company), 135 NLRB 1402
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the disputed work, and may, arguably, claim entitle-
ment to the disputed work under their contracts
2. Area, craft, and industry practice
Since about 1947, the unrepresented artists in the
Employer's advertising art department have been
responsible for the production of color overlays for
advertisements originating in the advertising depart-
ment. On the other hand, employees in the photoen-
graving department, who are members of the Photoen-
gravers, have made color overlays for promotional
advertising originating in the editorial art department.
The record does not establish any definitive area,
craft, or industry practice in respect to the assignment
of the making of color separations by means of rubylith
or amberlith overlays, although the testimony indicates
that at three newspapers in widely scattered areas
of the country, employees represented by the Typogra-
phers have made the color overlays.
3. Skills, efficiency, and economy
All the artists in the Employer's advertising depart-
ment have had some experience in art work prior
to being employed by the Employer, and have attended
various commercial art schools, or have taken com-
mercial art classes at Akron University or other local
institutions. It further appears that their background
is utilized mainly in the performance of their other
tasks within the advertising department, as the cutting
of the rubylith or amberlith overlays requires no
great skill and no great degree of technical training.
The record further indicates that employees who are
members of the Photoengravers and the Typographers
also have the skills to perform the work. The Employer
however, maintains that the present work assignment
to its artists in the advertising art department is
required in the interest of efficiency and economy,
in view of the necessity of having the work performed
by persons as near to the customer as possible, and
moreover, that the work performance of the artists
has been, and continues to be, highly satisfactory.
Conclusions as to the Merits of the Dispute
On the basis of the foregoing considerations, it
is clear that the relevant factors favor a continuation
of the Employer's assignment of the disputed work
to the artists in the advertising art department, who
are unrepresented. We note, particularly, that the
artists have satisfactorily performed the disputed work
for over 20 years with the express or implied consent
of the Photoengravers and the Typographers. We
also note the skills, training, and experience of the
artists in the advertising art department, and the
efficiency and economy of the Employer's operation,
which dictates that the artists be in close proximity
to the Employer's customers and salesmen. We are
not unmindful of the fact that the Photoengravers
and the Typographers appear to have some colorable
right to the disputed work under their respective
contracts, but we note that the Board has repeatedly
held that a contract asserted as a defense in a 10(k)
proceeding must be clear and unambiguous.' Nor
do we consider the decision of the arbitrator, referred
to previously, as of controlling significance, for the
reason, inter alia, that all interested parties herein
did not appear in that proceeding. In all the circum-
stances, we shall determine the dispute by assigning
the work in question to the artists in the Employer's
advertising art department, who are unrepresented.
This determination is limited to the particular contro-
versy giving rise to this dispute.
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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Artists, who are unrepresented, are entitled to
perform the disputed work of cutting masks used
for colored overlays (rubylith or amberlith) in the
advertising art department of the Beacon Journal
Publishing Company, Akron, Ohio.
2. Lithographers and Photoengravers Internationl
Union, Local No. 24-P, is not entitled, by means
proscribed by Section 8(b)(4)(D) of the Act, to force
or require the Beacon Journal Publishing Company
to assign the work in dispute to employees represented
by the aforesaid Union.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Lithographers and
Photoengravers International Union, Local No. 24-
P, shall notify the Regional Director for Region 8,
in writing, whether or not it will refrain from forcing
or requiring The Beacon Journal Publishing Company,
by means proscribed by Section 8(b)(4)(D) of the
Act, to assign the work in dispute to employees
represented by the aforesaid Union, rather than to
employees of the Beacon Journal Publishing Company,
who are unrepresented.
' See, e g , Local 1291, International Longshoremen's Association
(Northern Metal Company), 137 NLRB 1451, and cases cited therein