Lithographers and Photoengravers Intl.

National Labor Relations Board - Board Decisions

Oct 28, 1970

186 N.L.R.B. 143 (N.L.R.B. 1970)

LITHOGRAPHERS AND PHOTOENGRAVERS INTL. 143
Lithographers and Photoengravers International Un-
ion, AFL-CIO1 and National Press, Incorporated
and Waukegan Typographical Union , No. 294,
International Typographical Union, AFL-CIO?
Case 13-CD-196
October 28, 1970
and that it will effectuate the policies of the Act to
assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the LPIU
and WTU are labor organizations within the meaning
of the Act.
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by National Press, Incorporated
(sometimes referred to herein as the Employer), on
February 24, 1970, alleging that LPIU has violated
Section 8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring the assignment of certain work described
below to employees represented by LPIU rather than
to employees represented by WTU. A hearing was
held before Hearing Officer Leon C. Reivitz on May
12, 13, and 14, 1970. 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. The rulings
of the Hearing Officer made at the hearing are free
from prejudicial error and are hereby affirmed. WTU,
LPIU, and the Employer filed briefs in support of
their positions and they have been duly considered.
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.
Upon the entire record in this case, the Board makes
the following findings.
1. THE BUSINESS OF THE EMPLOYER
National Press, Incorporated, is an Illinois corpora-
tion with a plant located in North Chicago, Illinois,
where it is engaged in the production of commercial
and business printing, promotional specialities, and
advertising catalogues. During the 12 months preced-
ing the hearing, it had a gross volume of business in
excess of $6 million and shipped goods valued at in
excess of $100,000 directly in interstate commerce.
The parties stipulated, and we find, that the Employer
is engaged in commerce within the meaning of the Act
I Hereinafter referred to as LPIU.
z Hereinafter WTU. WTU was permitted to intervene at the hearing
without objection.
3 Employee Kleber, a member and former officer of WTU, testified that
among the typographers (represented by WTU) he did virtually all of the
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is engaged in the production of
commercial and business printing. Since 1932 it has
recognized WTU as the collective-bargaining agent of
certain of its employees who are engaged in the "hot-
type" method of printing. WTU and the Employer
have been parties to collective-bargaining contracts
covering those employees since 1932, the most recent
contract having been entered into in 1968 effective
until 1971. In 1935, the Employer also recognized
LPIU's predecessor, International Photoengravers
Union of North America, as the bargaining agent of
its offset department employees, and has maintained
a contractual relationship with that union or LPIU
since that time. The most recent LPIU contract, like
WTU's, is effective from 1968 to 1971. The work of
the employees represented by LPIU is described as
"cold-type" printing.
The work output of the Employer is basically
divided into two parts. It prints a variety of items for
customers, and this work is called production or job
work. It also prints an extensive amount of material to
advertise its own work to potential customers. The
only issue herein is as to this advertising work, which
the parties stipulated includes a specialty catalog, a
general catalog, professional catalogs, a calendar
catalog, brochures, fliers, and copy for publication in
certain magazines.
During the several years preceding early 1967,
according to the testimony of Plant Manager Bielin-
ski, about 75 percent of the advertising work was
subcontracted out, 15 percent was performed by
employees represented by WTU, and 10 percent by
employees represented by LPIU.3 The subcontracting
out of this work during this period was due to the
Employer's inability to perform both its production
work on schedule and its own advertising work. This
inability to produce its own advertising work
stemmed in part from the fact that Varityper
machines utilized by lithographers represented by
LPIU could not produce work of sufficient quality for
advertising work during that period and that about 90 percent of the work
in certain catalogs had been produced by him. However, as he admitted
that much of this was work produced in previous years and reused in those
catalogs, his testimony does not appear to contradict Bielinski 's estimate of
the work breakdown.
186 NLRB No. 26
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
much of the advertising material and by the fact that,
despite repeated efforts, the Employer was unable to
hire additional typographers.
In May 1967, the Employer purchased three IBM
Selectric Composing machines4 to replace two Vari-
typer machines and assigned the Varityper operators
to run the IBM machines. The Varityper operators
were members of the unit represented by LPIU. WTU
inquired of the Employer as to the function of the new
machines, claiming jurisdiction; it was informed that
they were replacements for the Varitypers and did not
press its claim. Within 60 days the Employer was
satisfied that the IBM Selectric machines could
perform all of its advertising work insofar as both
quality and quantity of product were concerned, and
it effectuated a change of operation whereby virtually
all of such work, whether previously subcontracted
out or produced within the plant, was performed by
one full-time and one part-time Selectric machine,
each manned by a former Varityper operator repre-
sented by LPIU.
During 1968, the Employer negotiated new con-
tracts with both LPIU and WTU. The unit descrip-
tion clause - of LPIU's contract was specifically
amended to include Selectric Composing machine
operators; WTU's new contract made no mention of
that category.
WTU contends that it first learned that the
advertising work was being performed by lithogra-
phers on the Selectric machines at the beginning of
1969.5 On August 17, 1969, WTU in a letter to the
Employer claimed the advertising work then being
performed by the Selectric machines, and the Em-
ployer replied that the LPIU contract covered the
work. In September 1969, WTU reasserted its claim to
the work whether performed by its "hot-type" method
or by the Selectrics, which are the "cold-type" method
of operation.
WTU continued to assert its claim to the work and
demanded arbitration, claiming the Employer had an
obligation to arbitrate under its collective-bargaining
contract. The Employer maintained that its contract
with LPIU provided that the work be performed by
employees represented by LPIU. Although there is no
contention that LPIU was bound to comply, WTU
suggested that the Employer invite LPIU to the
arbitration.
On February 4, 1970, Bielinski wrote to LPIU:
As you are aware, Waukegan Typographical
Union # 294 is claiming certain work performed
by our IBM Selectric Composing machines.
The work claimed has and is being done by
4 Also referred to as Selectronic Composing machines
5 This contention is refuted , however, by Kleber's admission that he
became aware that he was no longer getting advertising work to do in early
1967, by the testimony of Cretan, an employee and officer of WTU, that
members of your Bargaining Unit. The Typo-
graphical Union is now requesting arbitration.
Will you please immediately advise us as to your
position in this matter.
And on February 10, 1970, LPIU responded by letter:
Our Union, of course, cannot be bound by any
arbitration award concerning this work which may
be rendered in any proceeding between the
Company and the Typographical Union. You are,
further, hereby notified that in the event that the
Company should assign this work for performance
by employees outside the bargaining unit repre-
sented by the LPIU, the Union will not hesitate to
engage in such strike or other economic action as it
may deem necessary to protect the interests of its
membership.
We sincerely trust that you will not be a party to
any action which will make this necessary.
On February 24, 1970, the Employer filed the
instant charge alleging that LPIU threatened to strike
if the work were removed from their jurisdiction, and
that both LPIU and WTU claimed the work.
B. The Work in Dispute
At the hearing the parties stipulated that the work in
dispute be defined as follows:
Whether the advertising work in dispute should be
performed by the employees represented by the
Lithographers and Photoengravers International
Union , AFL-CIO, or by employees represented
by Waukegan Typographical Union , No. 294,
International Typographical Union , AFL-CIO.
That the above mentioned advertising work is
defined to mean certain materials that appear in
the Company 's specialty catalogue, general cata-
logue , calendar catalogue , medical and other
professional catalogues , brochures , flyers, and any
copy which is prepared for publication in certain
magazines where National Press advertises.
As the work thus defined is being performed on the
IBM Selectric Composing machines , and as it is that
operation which is in issue, we conclude that the work
in dispute may be described more precisely as the
operation of the IBM Selectric Composing machines
in the performance of the Employer's own advertising
work.
C. The Contentions of the Parties
The Employer contends that utilization of the
Selectric machines, operated by lithographers, creates
an integrated operation, which is more efficient and
he was aware that advertising catalog work was being performed on
Selectrics in 1968 , and by the fact that the 1967 catalogs , over 100,000 in
number, were stacked in aisles around the plant , by the cutting machines,
and within 75 feet of the typographers place of work.
LITHOGRAPHERS AND PHOTOENGRAVERS INTL. 145
economical than if typographers were to be awarded
the work; that the Selectrics replaced Varitypers
which were operated by lithographers; and that award
to typographers would result in layoff of lithogra-
phers, production problems, and more overtime for
typographers.
LPIU contends that award of the disputed work to
employees represented by it is consistent with a Board
certification,6 its contract with the Employer, and the
Employer's assignment . LPIU further asserts that
lithographers operating the Selectric are more skilled
by virtue of training and their 3 years of experience on
the job; and that utilization of lithographers is more
efficient and economical due to the close proximity of
the machines to the offset department and the fact
that the operation of the machines is an integral part
of the "cold-type" method. LPIU also agrees with the
Employer that there would be a need for additional
overtime if typographers were awarded the work but
no such need if lithographers perform it, and that
assignment to lithographers has resulted in no
diminution of work or work force among the
typographers whereas award to typographers would
result in the layoff of one lithographer.
WTU's basic contention is that the Employer
deceived it in surreptitiously reassigning the work in
issue to the lithographers operating the Selectric
machines and in not informing it of that action even
through the 1968 contract negotiations. WTU further
argues that LPIU's 1968 contract inclusion of
Selectric operators and the skills of the operators
acquired through training and 3 years of operation of
the machine should not be considered since they are
predicated on the Employer's alleged concealment.?
Finally, WTU contends that employees represented
by it possess the requisite skills to perform the work in
dispute, that area practice favors an award to them,
and that because the advertising work in issue was
formerly performed by typographers the operation of
the Selectric machine should be awarded to them.
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 there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated.
In this case, as is more detailed above, the Employer
assigned the disputed work to lithographers. Since
about August 1969, WTU has contested that assign-
6 In 1960 , International Photoengravers Union of North America,
predecessor of LPIU, was certified by the Board as collective -bargaining
representative of the Employer' s offset platemaking department. The
Varityper operators whose machines were replaced by the Selectrics were
included in that department.
During the hearing WTU filed a charge in Case 13-CA-9830 alleging
that the Employer's conduct constituted a violation of Section 8(a)(5) of
ment . When advised by the Employer of WTU's
position, Lithographers promptly threatened to strike
if the disputed work was assigned to anyone outside
its unit.
On the basis of the entire record, we find 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. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to all relevant factors. In
International Association of Machinists, Lodge No.
1743 (J. A. Jones Construction Co.),8 the Board set
forth in the following criteria to be considered in the
making of an affirmative award in a 10(k) proceeding:
The Board will consider all relevant factors in
determining who is entitled to the work in dispute,
e.g., the skills and work involved, certification by
the Board, company and industry practice, agree-
ments between unions and between employers and
unions, awards of arbitrators, joint boards, and the
AFL-CIO in the same or related, cases, the
assignment made by the employer, and the
efficient operation of the employer's business .9
1. Certification by the Board and arbitrators
and other awards
There are no relevant arbitration awards or deci-
sions of the National Joint Board for the settlement of
jurisdictional disputes. Although enjoying a contrac-
tual relationship with the Employer since 1932, WTU
has never been certified as the bargaining representa-
tive of employees of the Employer. As noted above,
LPIU's predecessor was certified in 1960 for a unit
described as follows:
All employees employed in what is now known
and recognized as the offset platemaking depart-
ment of National Press, Inc., engaged in the
production of offset plates and who are engaged in
all attendant work thereto and all parts of the
process pertaining to the production of offset
plates from the copy up to the finished product
including paste-up and related preparation of
copy, photographs and the handling and process-
ing of all negatives and positives for reproductive
purposes; retouching, including opaquing of
negatives and positives; color separations and
the Act. On June 17, 1970, the Regional Director for Region 13 refused to
issue a complaint based on WTU's charge, and WTU appealed the
Regional Director's action to the General Counsel. On August 19, 1970, the
General Counsel denied WTU' s appeal. The issues raised in WTU's charge
are not before us here.
8 135 NLRB 1402.
9 Id. at 1410-11.
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other purposes including dropout on plates or
negatives ; stripping and layout and makeup work
of all kinds to include the traditional setup,
assembly and positioning necessary and required
for the completion of process; printing; etching;
the operation of electronic plate making.
Since it is uncontested that the work in dispute was
not performed, or at least in principal part was not
performed, by lithographers, it is questionable wheth-
er the disputed work was "known and recognized" as
unit work before the advent of the Selectric machines.
However, LPIU's certification clearly covers the
offset department, and the Selectrics, both because of
their physical proximity to the offset department and
because of the fact they are part of the "cold-type"
method, appear to be reasonably includable in that
department like Varitypers they replaced.
2. Agreements between the Employer and
the Unions
WTU concedes that its contract does not refer to
Selectric operators , on the other hand , article 3,
section 2(c), of LPIU' s current contract reads in
pertinent part:
The jurisdiction of the LPIU over the process of
photoengraving as defined includes paste-up
(artwork and customer's original copy) input-
output IBM Selectric Composer and headlining
However, inasmuch as WTU contends that its
contract is silent on this coverage because it was
unaware that the work was being performed until
1969, we shall not rely on this factor.
3. Skills and work involved
We are not persuaded that the skills and training of
either group are significantly greater than the other. It
is, of course , clear that the lithographers operating the
machines were trained to do so , and they have had 3
years of experience on the Selectrics . Although there
is unrefuted evidence that none of the typographers
have operated the Selectric machines, there is also
evidence that they have operated similar machines
with keyboards nearly identical.
4. Area and industry practice
The evidence concerning area and industry practice
is of little or no value in determining this dispute.
LPIU offered area contracts into evidence concerning
jurisdiction over Varityper machines , but not over
Selectrics . WTU Local President Lynch testified that
he knew of two Chicago area companies wherein
typographers operate Selectric machines and another
where they formerly did under agreements with these
companies . However, Lynch did not know if these
companies employed lithographers.
5. Efficiency and economy of operations
There is ample evidence in the record to establish
that the Employer's operation is more efficient and
economical utilizing lithographers to operate the
Selectric machines than it would be if typographers
were awarded the work . The Employer has made
repeated efforts over a period of years to hire
additional typographers . Those efforts have been
unsuccessful . Consequently , substantial overtime is
worked by its employees in this category . In 1969,
each typographer averaged 155 hours of overtime. If
typographers were assigned to operate the Selectrics,
additional overtime would of necessity be required. In
contrast, the two Selectric operators assigned to
advertising work averaged 31 hours of overtime in
1969. Furthermore, the Selectric machines have been
installed in a room adjacent to the offset department
on the site formerly occupied by the Varitypers. The
Selectrics and certain functions performed in the
offset department now represent an integrated proc-
ess which produces a complete piece of advertising
material . The composing room wherein the typogra-
phers work is located about 100 yards away. If
typographers were awarded the work , either they
would have to work far separated from their depart-
ment and other duties or the machines would have to
be moved nearer the composing room and the
advertising material would have to be transported
back and forth between the Selectric machines and
the offset department to assemble the final product.
6. Assignment made by the Employer and
impact upon the employees
An award in favor of employees represented by
LPIU would of course be consistent with the
Employer's assignment . That assignment has not had
an adverse impact on the typographical unit in that no
reduction in force was required and overtime is still
extensive and common . If, however , an award were
made to employees represented by WTU, it is the
uncontradicted testimony of Bielinski that one lithog-
rapher currently operating a Selectric would have to
be laid off.
CONCLUSION
Based upon the entire record, and after full
consideration of all the relevant factors , we conclude
that the employees represented by LPIU are entitled
to the work in dispute . Our present determination is
limited to the particular dispute involved herein. In
making this determination , we are assigning the
LITHOGRAPHERS AND PHOTOENGRAVERS INTL.
disputed work to employees who are represented by
LPIU and not to the LPIU or its members.
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 case,
147
the National Labor Relations Board makes the
following Determination of Dispute:
Employees employed by National Press, Incorpo-
rated, as lithographers and currently represented by
Lithographers and Photoengravers International Un-
ion, AFL-CIO, are entitled to operate the IBM
Selectric Composing machines in the performance of
the Employer's own advertising work.