Lithographers Union, Local 23P

National Labor Relations Board - Board Decisions

Oct 23, 1967

167 N.L.R.B. 958 (N.L.R.B. 1967)

958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lithographers and Photoengravers International
Union , Local 23P and Buyer 's Guide , Inc., d/b/a
News Publishing Company I and Seattle Typo-
graphical Union , Local 202, affiliated with
International Typographical Union , AFL-CIO.
Case 19-CD-126
October 23, 1967
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY MEMBERS BROWN,JENKINS , AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , follow-
ing a charge filed by Buyer ' s Guide, Inc., d/b/a
News Publishing Company, hereinafter referred to
as the Company or the Employer , alleging that
Lithographers and Photoengravers International
Union , Local 23P, AFL-CIO, hereinafter referred
to as Local 23P or Photoengravers , had violated
Section 8(b)(4)(D ) of the Act. Pursuant to notice, a
hearing was held before Hearing Officer Wesley M.
Wilson on July 12 and 13 , 1967.2 The Company,
Local 23P, Seattle Typographical Union, Local
202, affiliated with International Typographical
Union , AFL-CIO, hereinafter called ST U:' or
Typographers , appeared at the hearing and were af-
forded full opportunity 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
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three -member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error . They are hereby
affirmed . 4 The Employer , the Respondent , and the
STU have filed briefs herein which have been duly
considered.
Upon the entire record in this case , the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is engaged in the publishing, print-
ing, and distribution of weekly newspapers and cir-
culars; in the manufacture of photoengravings and
The name of the Company appears as amended at the hearing
All dates herein are 1967 unless otherwise indicated
Local 202, ITU, is a party to the dispute
a I ocal 23P filed a prehearing motion , renewed at the hearing,
requesting that a prior and separate hearing be ordered by the Board for
the purpose of determining whether there had been a strike threat by
Local 23P and that the Board rule on this issue prior to making a deter-
mination as to work assignment The Hearing Officer denied the motion
in the hearing and referred it to the Board However , Local 23P in its brief
to the Board does not press for a ruling on its previous motion and in lieu
thereof moves that notice of hearing issued herein be quashed and the
charge be dismissed
mats, plastic printing plates, rubber printing plates;
and in stereotyping. During the past year the Em-
ployer performed services valued in excess of
$50,000 for customers outside the State of
Washington. During the past year the Employer
purchased goods valued in excess of $50,000 from
outside the State of Washington. The Board's ju-
risdiction over the Employer is not contested. We
find that the Employer is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent Union and STU are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
The dispute herein arises out of the Employer's
purchase of a Kenro Camera and the assignment of
its operation to its typographers represented by the
STU, and employed in the Employer's newspaper
printing department.5
Previous to November 1966, the Employer
produced all advertising for its newspaper and cir-
culars by the "hot type" method. Since the first part
of January 1967, the Employer in addition to the
"hot type" method, introduced the "cold type"
process for producing display advertising material
by using phototypesetting instead of typecasting
machines for part of its operations in the newspaper
printing department. These "cold type" process
typesetting machines do not produce illustrative
materials of any kind. The components of a display
ad, other than the lettering such as illustrative
material, were produced by stereotype casts or
photoengraving cuts in the hot type process.
On January 6, 1967, the Employer notified the
STU that the Company was installing a Kenro
Camera in the composing room for composing room
work. STU immediately accepted the assignment
by the Employer. Respondent Union did not
protest the assignment to the composing room em-
ployees and made no claim to the right of its mem-
bers to use the Kenro Camera until at a meeting
with company representatives in mid-March 1967,
and it reiterated its claim at another meeting on
March 29, 1967. Local 23P based its claim to the
work on its collective-bargaining agreement. At the
The Employer's operations are divided into four departments (1)
Newspaper printing and publishing This department is engaged primarily
in the printing and distribution of weekly newspapers which it publishes or
prints on contract In addition , this department punts circulars in
newspaper format for vanous customers The STU members are em-
ployed in this department (2) Commercial photoengraving This depart-
ment, which is separate and distinct from the above-described depart-
ment, produces commerical photoengravings for sale to the trade which is
approximately 95% of its business and the other 5% goes to its newspaper
printing department Local 23P members are employed in this depart-
ment The other two departments, commercial stereotype and the dis-
tribution department, engage in operations which are not pertinent here
167 NLRB No. 142
LITHOGRAPHERS UNION, LOCAL 23P
March 29 meeting a representative of the Interna-
tional Union of Photoengravers stated that "the
making of illustrative Veloxes in the composing
room was a violation of the Photoengravers' con-
tract [Local 23 P] and would have to stop or action
would have to be taken." On April 12, Local 23P,
by letter, notified the Company that the assignment
of the production of Velox prints (of illustrative
material) to the Typographers was "a clear and
overt violation of ... the current Labor-Manage-
ment Agreemnent" and "this violative practice be
discontinued immediately...."
On May 22, Local 23 P sent a letter reiterating its
claim to the disputed work and that it was "filing a
grievance" under the grievance procedure provi-
sion of its contract with the Company.6
The Company, being of the opinion that since
STU had been assigned the work and as STU also
claimed the work under its contract, thought that
resort to the grievance procedure under the terms
of its contract with Local 23P would lead but to A
further dispute with STU in the event of a grievance
decision favorable to Local 23P. The Company
then filed its charge - herein.
Entirely apart from the merits of the conflicting
claims for the work herein involved, the Photoen-
gravers argues that there is no evidence to show
that it or any of its agents engaged in conduct viola-
tive of Section 8(b)(4)(D) of the Act. It contends,
therefore, that the charge filed is without merit, and
that in consequence, the notice of hearing must be
quashed.
The primary question before us is whether the
Respondent Union attempted by threats, coercion,
or restraint to force the Company to assign the
work in dispute to its members employed by the
Company in violation of Section 8(b)(4)(D). Section
10(k) of the Act empowers and directs the Board to
hear and determine disputes out of which 8(b)(4)(D)
charges have arisen. However, before making a
determination of the dispute in Section 10(k)
proceedings, the Board is required to find that there
is reasonable cause to believe that Section
8(b)(4)(D) has been violated.
One of the essential elements supporting a finding
of violation of this section of the statute is that the
Respondent Union, in the instant case, must have
engaged in prohibited conduct toward the Em-
ployer. In pertinent part, Section 8(b)(4)(ii)(D)
reads as follows:
It shall be an unfair labor practice for a labor
organization or its agents -
" The Respondent Union, in a letter to the Company dated June 7,
decried the Company's filing of the charge herein as an "overt attempt" to
avoid the Company 's obligation under their collective-bargaining agree-
ment and insisted that the Company submit to the grievance arbitration
procedure provided in the agreement The Company in a letter to
Respondent Union dated June 8 , agreed to meet with Respondent Union
to discuss the "Unions alleged breach of contract " The Respondent
stated in its brief, and it is part of the record "The parties held grievance
959
(ii) to threaten, coerce, or restrain any person
engaged in commerce ... where ... an object
thereof is:
(D) forcing or requiring any employer to
assign particular work to employees in a
particular labor organization or in a par-
ticular trade, craft, or class rather than to
employees in another labor organization
or in another trade, craft, or class, unless
such employer is failing to conform to an
order or certification of the Board deter-
mining the bargaining representative for
employees performing such work ....
On this point, we find that there is insufficient
evidence to support the conclusion that there is
reasonable cause to believe that the Respondent
Union resorted to prohibited methods in pressing
its claim to the work assignment . Respondent
neither struck the Employer's plant or picketed, nor
threatened to do so.
As a sum total of the facts offered as proof of il-
legal threat, coercion, or restraint, it appears that at
the meeting on March 29, between the Employer
and Respondent Union's representatives, the use of
the Kenro Camera in producing Velox prints was
one of the matters discussed. Humbert, vice pre-
sident and general manager of the Company,
testified as to what he deemed to be a threat by Vice
President Dillon of the Respondent Union' s Inter-
national if Local 23 P was not assigned the produc-
tion of Velox prints. Humbert testified that Dillon:
made the flat statement that definitely this
[production of Velox prints by the typogra-
phers] had to stop, it was their work [23 P] and
they were not going to stand still for us doing
the work.
Humbert subsequently testifying as to these alleged
threats by Dillon, at the March 29 meeting, stated:
... he [Dillon] said that this work ... could
no longer be done by composing room person-
nel and would have to be done by engraving de-
partment personnel, and that
He made the statement this had to stop im-
mediately, that it was work that properly be-
longed in his opinion in the photoengraving de-
partment, and he made it pretty strong and
rather heated that this had to stop immediately,
that it was work that properly belonged in his
opinion in the photoengraving department, and
he made it pretty strong and heated that this
work, this practice of having work in the com-
meetings on June 19 and 26, 1967, in an effort to resolve their dispute
No settlement was reached , and on July 12, 1967, the Union requested
that a joint grievance committee be convened at the earliest possible
date to select an impartial member for the board of arbitration provided
for in the Agreement " Respondent Union further states in its brief
that "the grievance is presently being actively processed by the Photo-
engravers and the Employer in accordance with the grievance -arbitration
procedure of their collective bargaining agreement "
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posing room had to discontinue immediately,
and they would take appropriate action other-
wise.
Schmitt, the Company's president, testifying as
to what was said at'the March 29 meeting, stated:
... Mr. Dillon rather heatedly stated that the
making of illustrative Veloxes in the compos-,
ing room was a violation of the Photoen-
gravers' contract would have to stop or action
be taken.
Schmitt, testifying as why in his opinion the state-
ments made by Dillon constituted threats of
economic action, stated:
It has been my experience that when unions
make strong demands, they often times back up
these demands with work stoppages, restric-
tions of overtime, slowdowns, et cetera. It is
also my experience that unions periodically
change leadership, [as was the case here] and
sometimes in the change of leadership, they
take actions that they would not have taken
under previous leadership or perhaps would
not take under future leadership. In this case
we had the strike experience,7 and we frankly
felt that the International Union has lost con-
trol of the local union, and that the local union
was led by immature inexperienced leadership,
and perhaps this would lead to overt acts or
work stoppages, slowdowns, restrictions of
hour or time or what have you. So we were
very, very much concerned about this type of
action and we took these letters8 and the
discussion as a definite threat to take some ac-
tion which would perhaps stop our production.
In order to form any basis for the proceeding
herein, a threat must be inferred from either of Dil-
lon's alleged statements that "they would take ap-
propriate action" or "we are not going to stand still"
if not assigned the disputed work. There was no
other direct threat or other intimidation. Given the
circumstances of the moment, and in view of the
Respondent Union's insistence that it would use the
grievance-arbitration procedure to protect its in-
terest in the disputed work, we do not construe Dil-
lon's statements as an illegal threat. His statements,
in view of the succeeding actions taken by Local
23P, are reasonably interpreted as referring to ac-
tion under the grievance-arbitration procedure of
the Photoengravers' contract. On this basis, we find
that the aforesaid statements neither explicitly nor
by implication constitute a threat or coercion within
the meaning of Section 8(b)(4)(D).
Further, it appears clear from the record that the
Employer, faced with the problem of a dispute
between the two unions, sought Board action, not
on the basis of any threats or coercion, but invoked
Board procedure purely as a method of settling the
dispute. This latter fact is evidenced by the
testimony of Ira R. Hurlburt, a representative of an
employer's association of which the Company was
a member who, in conjunction with Humbert,
prepared the Employer's charge and advised the fil-
ing of such charge. Hurlburt testified that:
I am an advisor in this capacity [labor-manage-
ment relations], since they [Employer] are a
member of the Printing Industry of Seattle, and
we discussed all facts of that matter [the
dispute] and it was my advice, since these two
unions were involved in a dispute, that the
grievance machinery wouldn't resolve the
matter inasmuch as if the matter was upheld
through grievance machinery for the Photoen-
graver, then we would be in hot water labor
relations wise with the Typographical Union.
This testimony is uncontradicted and is supported
by a letter written by Schmitt to Local 23P on May
31 wherein it was stated:
This will acknowledge receipt of your letter of
an alleged grievance dated May 22, 1967.
Since employees represented by another union
are involved, we have requested the NLRB to
investigate the dispute and make a determina-
tion. Therefore, we suggest both parties defer
taking this matter through grievance
procedure.
The Act's requirements of "reasonable cause"
are not met by a mere showing that two unions are
claiming the disputed work.9 In these circum-
stances, we find that there is not reasonable cause
to believe that Section 8(b)(4)(D) has been violated.
Therefore, we find that the Board is without
authority to determine this dispute. Accordingly,
we shall quash the notice of hearing issued herein.10
ORDER
IT IS HEREBY ORDERED that the notice of hearing
issued in this case be, and it hereby is, quashed.
' The strike referred to occurred during the 1966 contract negotiations
over a matter unrelated to the jurisdictional dispute and lasted a day and
a half. The uncontradicted testimony of a witness for the Respondent
Union, as to the stnkes by the Local , was that there had been only two
strikes against their employers in the past 30 years for a total of 2-1/2
days
, The letters referred to were those of April 12 and May 27 noted
supra
0 Northeastern Line Constructors Chapter, Nat! Electrical Contrac-
tors Assn (E C Ernst, Inc ), 137 NLRB 1746, Chicago Typographical
Union No 16, AFL-CIO (Neely Printing Co), 155 NLRB 963
10 International Association of Machinists, AFL-CIO (Carling Brew-
ing Co ), 136 N LRB 1216,E C Ernst, Inc, supra.