Local 245, Graphic Arts Int'l Union

National Labor Relations Board - Board Decisions

Sep 17, 1975

220 N.L.R.B. 407 (N.L.R.B. 1975)

LOCAL 245, GRAPHIC ARTS INTL. UNION 407
Local. No. 245, Graphic Arts International Union,
AFL-CIO and Graphicscans Corporation and Kahle
Printing Company . Cases 13-CC-849 and
13-CC-854
September 17, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
On March 31, 1975, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Charging Parties filed exceptions, the General
Counsel filed a supporting brief, and the Respondent
Union filed a brief in answer to the exceptions of the
General Counsel and the Charging Parties.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order .2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaints herein be , and they hereby
are, dismissed in their entirety.
vember 20-21, 1974.' Separate identical charges were filed
against Local 245 (herein called the Union), by Graphic-
scans Corporation 2 on September 4 and by Kable Printing
Company (herein called Kable) on October 15. The com-
plaints , issued on September 17 and October 30, were con-
solidated on October 30.
This case arose during a primary dispute between Kable
and its photoengravers, represented by another local of the
Union's International . In May, when its photoengravers
went on strike, Kable began negotiating with a secondary
employer, Graphicscans, to engrave the rotogravure cylin-
ders needed for publication of the American Home maga-
zine . However, relying on the "struck work" clause in their
union contract, Graphicscans' photoengravers (represented
by the Union) refused to work on the cylinders which Ka-
bel had sent to Graphicscans to be engraved. Thereafter,
Kable began arranging for this test case, to test Kable's
"right" to have its customers (like the American Home
publisher) "to place work themselves" with rotogravure
trade shops (like Graphicscans), to enable Kable to retain
the customers and continue the rotogravure printing dur-
ing the strike. Accordingly American Home, upon Kable's
recommendation, placed the order for Graphicscans to en-
grave cylinders from Kable and return them to Kable for
printing.
In September, the Union took the position that the en-
graving of the cylinders being sent by Kable to Graphic-
scans was "struck work," and notified Graphicscans that
its photoengravers "will not engrave those cylinders." The
primary issue is whether Graphicscans had so " entangled"
itself "in the vortex of the primary dispute" at Kable as to
become Kable's "ally," performing "struck work"; or
whether the ally doctrine is inapplicable, and the Union
therefore unlawfully coerced Graphicscans in violation of
'Section 8(b)(4)(ii)(B) of the National Labor Relations Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, the Union, and the
two Charging Parties, I make the following:
FINDINGS OF FACT
' In his Decision , the Administrative Law Judge held that the work in
controversy is "struck work." We agree . In this respect, however, we deem it
unnecessary to pass upon his finding that Kahle Printing Company' s alleged
decision to close down permanently the rotogravure preparatory portion of
its business remained "prospective" in nature at the time of the conduct
herein alleged as unlawful . At the hearing, the General Counsel specifically
disclaimed any relevance between that alleged decision and the issues raised
in this proceeding and no party argued its relevance in briefs to the Admin-
istrative Law Judge.
2 We find the Byrne case (Laborers' International Union of North America,
Local 859 v. N.L.R.B., 446 F.2d 1319 (C.A.D.C., 1971), distinguishable on
the facts. Hence, it is not dispositive of the issues raised herein , and we do
not rely on it in adopting the Decision of the Administrative Law Judge.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: These
consolidated cases were tried at Chicago, Illinois, on No-
I. JURISDICTION
Kable, an Illinois corporation, is engaged in the manu-
facture of magazines and catalogs in Mount Morris, Illi-
nois ; and Graphicscans, another Illinois corporation, is a
rotogravure trade shop in Schiller Park, Illinois. Both Ka-
ble and Graphicscans annually receive goods and materials
valued in excess of $50,000 directly from outside the State.
I find that Kable and Graphicscans each is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
1 All dates are in 1974 unless otherwise stated.
2 The names of the Union and Graphicscans were corrected at the trial.
220 NLRB No. 75
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If. ALLEGED UNFAIR LABOR PRACTICES B. Arrangements for Test Case
Faced with a continuing strike, and its inability to farm
out the "struck work," Kable began making arrangements
to send its rotogravure cylinders again from the struck
plant to Graphicscans, beginning in August for the Octo-
ber issue of American Home, and to have Graphicscans do
the engraving, despite the earlier rejection. The plan was to
have the publisher himself place the order for the engrav-
ing on Kable's cylinders. This procedure was mentioned in
an interoffice communication to Kable from its parent
company, Western Publishing Company, dated June 14,
and stating in part:
As you know, we are in the process of testing our
right of customers to place work themselves and once
we are able to get a judgment against the local union,
either in Chicago or Milwaukee, I believe we will be
able to rather easily move work in and out of the
front-end trade shops. [Emphasis supplied.]
Pursuant to this plan, Kable entered into a month-by-
month agreement with the American Home to produce the
magazine under the terms of their proposed 5-year printing
contract, provided that the publisher himself would place
the order for the film work and the cylinder engraving, for
which Kable particularly recommended Graphicscans.
(Kable recommended Graphicscans over the two Milwau-
kee trade shops.)
Evidently relying on Kable to make all the arrangements
with Graphicscans to perform the work while Kable's pho-
toengravers remained on strike, American Home publisher,
Warren Erhardt, sent Graphicscans a cryptic purchase re-
quisition, dated July 11, ordering the cylinders to be en-
graved on a month-to-month basis "as necessary," without
any mention of the price, terms, or conditions. The requisi-
tion read:
Make Rotogravure Cylinders as Required for the Oc-
tober 1974 Issue of American Home and as necessary
For 11 Issues Thereafter. [Emphasis supplied.]
Erhardt testified that he had not had any telephone com-
munications with anyone at Graphicscans at the time he
sent this requisition; that he did not know of anyone from
American Home who had visited the Graphicscans plant;
and that he did not know of any of his representatives who
had asked to see a sample of Graphicscans' work. When
asked by the Graphicscans counsel whether the issuance of
the purchase order without stating any price was "a normal
way of doing business," Erhardt answered that he did not
know, but that the American Home printing consultant
and production manager "indicated that was the way to
go "
On July 16, 5 days after the mailing of the requisition,
Kable wrote American Home a letter, assuming responsi-
bility for producing the entire October issue (without ex-
cluding responsibility for the film work and cylinder en-
graving), and referring to future issues "as arrangements
can be completed":
We have agreed that Kable will produce for you the
October 1974 issue of American Home Magazine un-
der the provisions of the presently proposed printing
A. Background
Kable, whose printing plant in Mount Morris is located
about 100 miles west of Chicago, entered into a subcon-
tract in late 1973 to produce the rotogravure part of the
American Home magazine, beginning with the December
1973 issue. By March, it printed over half of the magazine,
performing all the film preparatory work, cylinder engrav-
ing, and printing for the rotogravure pages to be included
in the magazine.
In January or February, Kable began negotiating with
American Home Publishing Company, Inc., the new owner
of the American Home magazine, to print the entire maga-
zine, using the rotogravure process, beginning with the Oc-
tober issue. By late June, Kable and the American Home
publisher had reached virtual agreement on the final form
of a 5-year printing contract, covering all the film, cylinder,
printing, and binding work on the magazine. However, the
publisher refused to sign the contract because of the uncer-
tainty over Kable's ability to provide the necessary roto-
gravure cylinder work.
On May 10, Kable's photoengravers, who performed the
film and cylinder work, had gone on strike. (They were
represented by Local 91-P, a sister local of the Union.)
Kable had been negotiating with Graphicscans, a rotogra-
vure trade shop in Schiller Park, near O'Hare Airport, and
also with two Milwaukee trade shops (S & M Rotogravure
Service, Inc., and Mueller Color Plate Company), but, be-
cause of the "struck work" provisions in the union con-
tracts, Kable had been unable to farm out the cylinder
engraving. (The Union's agreement with Graphicscans
provided: "No employee shall be required to handle any
struck work from any plant struck by any local of the
Graphic Arts International Union other than work custom-
arily performed for the employer involved in the strike."
The legality of this provision is not challenged.) The roto-
gravure film work was not a particular problem. Graphic-
scans had done some film work for American Home, and
the Union did not consider this "struck work." However,
Graphicscans had never engraved any cylinders for Kable,
whose own employees had performed this work, and Gra-
phicscans had never engraved any magazine-size cylinders.
Moreover, the engraving of the cylinders for American
Home during the strike would involve sending Kable's
blank cylinders (required to fit Kable's printing presses)
from the struck plant-across the picket line-to the trade
shop, having the trade shop's union engravers perform the
striking employees' work on the struck company cylinders,
and returning the engraved cylinders to the struck plant.
Nevertheless Kable, being required under the subcontract
to provide the rotogravure part of the magazine through
the September issue, sent four of its cylinders to Graphic-
scans in May for engraving. The work was rejected under
the "struck work" clause. Kable then instructed Graphic-
scans to forward the Kable cylinders to Mueller in Mil-
waukee, where the work was also rejected for the same
reason. (That July issue of the magazine was then printed
without any rotogravure pages.)
LOCAL 245, GRAPHIC ARTS INTL. UNION 409
contract between us , as they shall be applicable to this
single issue.
Thank you for your confidence. We are looking for-
ward to the continued production of American Home,
as arrangements can be completed.
I note that at the trial the Kable counsel contended that,
on July 22, Kable announced its "decision to go out of the
cylinder-making , roto processing business " to its striking
Local 91-P. However, neither the General Counsel, nor
Kable or Graphicscans, asserts in this proceeding that this
purported decision has any bearing on whether or not Gra-
phicscans was an ally of Kable in September, when the
Union is alleged to have violated Section 8(b)(4)(ii)(B) of
the Act. In fact, Kable counsel George Blake argued at the
trial that "whether Kable is out of [the cylinder-engraving]
business or not . . . since July 22 is the subject for consoli-
dated cases" involving S & M Rotogravure Service and
scheduled for trial in Milwaukee on December 2. "I think
this has no relevancy and can only confuse this case." The
General Counsel stated his agreement, arguing : "The issue
here is who gave the work to Graphicscans? Was it the
customer, American Home, or was it Kable? And what
happened in the other cases has no materiality." Thereaf-
ter, Kable's sales vice president , John Sayles , the witness
on the stand, confirmed that in July, Kable had notified
Local 91-P that "We are no longer doing rotogravure
work. Your unit has vanished." Nevertheless, despite this
evidence, I find that the ceasing-cylinder-engraving an-
nouncement, even if made in good faith, was prospective in
nature and had no bearing on the relationship of Kable
and Graphicscans in September. Contrary to the an-
nouncement, Kable had continued to engrave its own cyl-
inders, for Travel and Leisure, TV Week, and other maga-
zines. In fact, at the time of trial in November, Kable Vice
President Sayles testified that Kable had "in the neighbor-
hood of 20 or so," or somewhere between 15 or 20 supervi-
sory and salaried persons engraving some cylinders in the
plant, because "We have not been able to have somebody
else make them." (Concerning Travel and Leisure, he ex-
plained that American Express, which owns that magazine,
"has not wanted to get involved in a labor dispute in any
way and has chosen not to place orders themselves for
cylinders on the outside.") Therefore in September, at the
time of the alleged unfair labor practices , Kable remained
in the cylinder-engraving business. Depending perhaps on
the outcome of economic pressures of the strike , and vari-
ous cases in litigation, Kable and its striking photoengrav-
ers might or might not , sometime in the future , resolve
their differences and resume cylinder engraving in the
plant. The American Home purchase requisition, recom-
mended by Kable, was for Graphicscans to engrave cylin-
ders for succeeding months "as necessary ," thereby imply-
ing that Kable was expected to resume its own engraving in
the event that the Local 91-P strike was settled. Conse-
quently in September, when the Union treated Graphic-
scans as Kable's ally, doing struck work, the Union had no
way of knowing whether Kable would eventually cease its
cylinder-engraving business or, even if Kable's announce-
ment to Local 91-P was sincere at the time and not a mere
bargaining ploy, whether Kable would later change its po-
sition as the outcome of the strike and the litigation be-
came clearer.
The Union did nothing to interfere with Graphicscans'
engraving of the cylinders from Kable's plant until Sep-
tember, when the extent of the production arrangements
between Kable and Graphicscans was known, and when
Kable was continuing to engrave some of its own cylinders.
C. Production Arrangements between Kable and
Graphicscans
Kable furnished Graphicscans with its manufacturing
schedule, specifying each step of Graphicscans' film and
cylinder work; sent Graphicscans not only Kable's blank
cylinders to be engraved, but also Kable' s carts to trans-
port the cylinders through the trade shop; approved (with
necessary corrections) and sent to Graphicscans the type
and art work received by Kable from the publisher; gave
Graphicscans detailed layout instructions and necessary
changes and corrections; received and checked prints from
Graphicscans before authorizing the engraving of the cyl-
inders; and closely coordinated the work between itself
and Graphicscans. Robert McCann, Graphicscans' general
manger, listed additional customary contacts between a ro-
togravure trade shop and a printer. (As an example, the
trade shop must follow the printer's specifications in mark-
ing the edges of the cylinder to satisfy the electronic eye on
the printing press.) I note that, despite these production
arrangements, the cylinders for the October issue (the first
magazine cylinders ever made by Graphicscans) did not
satisfy Kable. Graphicscans' General Foreman Dennis
Bayette, when examined by Kable's counsel on direct ex-
amination, revealed that Kable "wanted us to help them
out" and "do something with the cylinders to make them
runable." However, Kable did not return them " Because
by that time it was common knowledge that they had gone
to Kable and that they couldn't come back. Kable was on
strike."
There were also other arrangements between Kable and
Graphicscans. Graphicscans forwarded its invoices to
American Home via Kable, which verified that the work
was done as scheduled by Kable. In addition, Kable ap-
proved additional charges made by Graphicscans , as well
as some overtime. (The evidence establishes that Kable did
not charge American Home for the cylinder-work price
which was included in the schedule of prices in the pro-
posed written contract, but the evidence does not disclose
the basis of Graphicscans' charges for making the cylin-
ders.)
D. The Union's Notification
On September 4, about 7 days before the engraving work
was scheduled to begin on Kable's blank cylinders which
Graphicscans had received from Kable for the November
issue of American Home, Union Steward Lawrence Glines
went to Graphicscans General Manager McCann's office
and "informed me he had received orders that he was to
inform myself that we the men, will not engrave those cylin-
ders" but that "it was okay to go ahead and continue work
on the film positives." (Emphasis supplied.) Later that
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same day, when McCann was at the union headquarters on
other business, McCann mentioned to Union Executive
Vice President Harry Conlon, "I understand you are not
going to let the men engrave the November issue of the
American Home." Conlon answered, "That's right," and
asked , "By the way, can I ask you who you are going to
invoice that work to?" McCann responded, "Yes. The
American Home Publishing Company"-without mention-
ing that Graphicscans' invoices to American Home had
been sent to Kahle.
"On September 6" (as stated in General Manager Mc-
Cann's September 9 affidavit, which was submitted to sup-
port the 10(1) temporary restraining order which was is-
sued on September 11), "Dennis Bayette , General
Foreman, reported to me that there had been a discussion
with the Union Steward regarding the engraving work to
be done on American Home. Mr. Bayette reported that the
Steward specifically stated that the union employees [em-
phasis supplied] would not do the engraving work on the
cylinders." (At the trial on November 20, General Fore-
man Bayette recalled that Union Steward Glines made the
ambiguous statement that " We [emphasis supplied]
couldn't work on American Home cylinders, that it had
been struck work"-without defining "we.") Although
Bayette was a member of the Union, he testified, "Normal-
ly I don't do any production work. I just supervise it. If I
don't like it, if it is proofing they have to do it over." (He
was not alleged to be an agent of the Union.) After receiv-
ing this information from Glines, Bayette notified his etch-
ing foreman and, as Bayette recalled , "probably" also the
proofers "by the time I went home." The word rapidly
spread around the plant. There is no evidence that the
Union itself induced any of the employees not to do the
so-called "struck work." (The consolidated complaints al-
leged violations of only Section 8(b)(4)(ii)(B). However, on
the first day of trial, I granted a motion to add an
8(b)(4)(i)(B) allegation upon the representation that the
conversation between Steward Glines and General Fore-
man Bayette was "in the presence of employees ." On the
second day of trial, after Bayette had testified to the con-
trary, I granted the Union's motion to strike the allegation.
Then at the close of the 2-day trial, the General Counsel
moved to add an allegation that Steward Glines informed a
foreman "employee" that "the Union was not going to per-
mit him or the other employees to work on engraving for
the November issue of American Home," in violation of
Section 8(b)(4)(i)(B ). I rejected the motion to amend , ruling
that the belated theory was untimely and contradicted by
the evidence.)
After the temporary restraining order was issued on Sep-
tember 11, Graphicscans' employees proceeded to engrave
the cylinders for the November and December issues. The
temporary restraining order was extended, by agreement of
the Union, until November 14, when it became moot.
Meanwhile, about October 10, the American Home pub-
lisher signed a 6-year printing contract with another printer
to produce the magazine , using the letterpress process.
(Publisher Erhardt denied that "any labor problems at
Graphicscans" were related at all to his decision to transfer
the work to a different printer.)
At the time of trial, no other charges related to the Kable
labor dispute had been filed against the Union.
E. Narrow Issue Involved
At the beginning of the strike, when Kahle was obligated
to produce the American Home rotogravure pages under a
subcontract, Graphicscans was eager to begin engraving
Kable's cylinders. However, under the "struck work"
clause in Graphicscans' agreement with the Union, the en-
graving of the cylinders which Kable sent to the Graphic-
scans plant was rejected as "struck work." Then, as Kahle
was negotiating with the new publisher of American Home
to produce the entire magazine, Kable arranged for the
publisher to place a requisition directly with Graphicscans
to engrave Kable's cylinders during the strike.
The narrow issue in this proceeding is whether, under
the circumstances, Graphicscans' engraving of Kahle's cyl-
inders during the strike so entangled Graphicscans in the
primary dispute that Graphicscans thereby became Kable's
ally, performing struck work.
The General Counsel, ignoring Kable's June 14 interof-
fice communication (stating that Kable was "in the process
of testing our right of customers to place work themselves"
to enable Kahle "to rather easily move work in and out" of
the rotogravure trade shops), contends that American
Home "made the arrangements" for the cylinder engraving
and "paid Graphicscans for this work. Kable, the primary
employer, played no part whatsoever, even indirectly, in
this financial transaction" between American Home and
Graphicscans. The General Counsel argues that the 5-year
contract (for Kable to produce the entire American Home
magazine , beginning with the October issue) was never
signed, that Kable was merely a potential customer of
American Home for the cylinder-engraving work, that the
cylinder engraving was never struck work, and that "the
situation is no different where would-be or potential cus-
tomers [like American Home] of a primary employer [Ka-
ble] give certain non-struck work to the primary employer
but at the same time because of the strike gives other work
to some employer other than the primary employer."
Kable, after citing a number of cases, contends that
"There is no evidence of any arrangement, either direct or
indirect, between Kahle and Graphicscans for the perfor-
mance of the engraving work in question. . . . It was
American Home who decided to give the work to Graphic-
scans" and paid the bill. Ignoring Kable's "recommenda-
tion" that American Home give the cylinder engraving to
Graphicscans, Kable's brief argues: "Kahle was not in-
volved in soliciting or negotiating this contract." Then,
largely ignoring the above-discussed production arrange-
ments between itself and Graphicscans, Kable contends:
"The contacts that Kable had with Graphicscans were
nothing more than those normally exchanged between the
engraver and the printer, e.g., proofing of the cylinders."
Kable further argues that "American Home certainly had
the right to seek to have its work performed elsewhere
when one of its suppliers has a labor dispute," and Gra-
phicscans' agreement to do the work "does not make that
employer an ally of the struck employer." Summarizing,
Kable argues that "the evidence here fails to establish any
sort of contractual arrangement instigated, designed or im-
LOCAL 245, GRAPHIC ARTS INTL. UNION
plemented by Kable to have its contractual obligations
performed by Graphicscans that might justify the applica-
tion of the ally doctrine." Finally, ignoring the fact that
American Home's cryptic, July 11 purchase requisition of
cylinders was only for the October issue and "as neces-
sary" for 11 issues thereafter (without stating any price,
terms, or conditions), Kable concludes in its brief that
"American Home's decision to withdraw the work from
Kable and to enter into a long-term agreement with Gra-
phicscans was an arms-length , independent and practical
determination that was fully within its rights under the
law."
Graphicscans, in addition, argues in its brief that "Kable
did not participate in the arrangement between American
Home and Graphicscans in any way" and that "Graphic-
scans and Kable were competing cylinder engravers, and
Graphicscans became American Home 's engraver rather
than Kable." Graphicscans denies that, under the cited
cases, it is an ally of Kable.
The Union, after citing in its brief many of the same
ally-doctrine cases, contends that Kable "urged" that Gra-
phicscans perform the cylinder engraving "so that Kable
could maintain its printing contract with American
Home," and that the "Arrangements to use Graphicscans
were made between Kable and American Home Magazine.
Graphicscans was not involved." The Union further argues
that "The Record clearly reveals that Kable was the moti-
vating force behind the transfer of the preparatory and
cylinder work to Graphicscans. . . . The treatment of
Graphicscans by American Home in all stages of the con-
tract shows that, while it may have signed the purchase
orders, it was not concerned with the experience, capability
or prices of Graphicscans' work-that it merely acquiesced
in the decision of Kable." The Union contends that Kable
"directed the work at Graphicscans," citing evidence that
Kable's involvement in the relationship between American
Home and Graphicscans extended "well beyond" the nor-
mal communications between a printer and a cylinder en-
graver. The union brief also argues that "Kable credited
American Home for cylinder engraving which Kable could
not do because of the strike ," that Graphicscans was aware
of the Union's contention that this was struck work, and
that the only work which the Union's members allegedly
refused was the cylinder engraving which had never been
done at Graphicscans before, and which would have been
performed at Kable but for the strike. The Union con-
cludes: "With full knowledge, Graphicscans cooperated in
using its employees as strikebreakers to perform work nor-
mally performed by striking employees of Kable's rotogra-
vure preparatory department. In so doing it entered the
primary dispute" and "sacrificed its neutrality and now
stands in the shoes of the primary employer, subject to
lawful primary activity."
F. The Ally Doctrine
The ally doctrine has been recognized by the Supreme
Court as a defense to an 8(b)(4)(B) charge "where the sec-
ondary employer against whom the union's pressure is di-
rected has entangled himself in the vortex of the primary
dispute." National Woodwork Manufacturers Association v.
411
N.LR.B., 386 U.S. 612, 627 (1967). The Supreme Court
cited, with approval, the leading Ebasco case, Douds v.
Metropolitan Federation of Architects, etc., Local 231 [Pro-
ject Engineering Company], 75 F.Supp. 672 (D.C.N.Y.,
1948), and the Royal Typewriter case, N.L.R.B. v. Business
Machine and Office Appliance Mechanics Conference Board,
Local 459 [Royal Typewriter Company], 228 F.2d 553 (C.A.
2, 1955), cert. denied 351 U.S. 962 (1956).
In Ebasco, Project performed a larger percentage of
Ebasco's work after the strike began. The Court, estab-
lishing the "ally" doctrine, ruled (75 F.Supp. at 676-677):
To suggest that Project had no interest in the dispute
between Ebasco and its employees is. to look at the
form and remain blind to substance.... Manifestly
it was not an innocent bystander, nor a neutral. It was
firmly allied to Ebasco ... .
The evidence is abundant that Project's employees
did work which, but for the strike of Ebasco's employ-
ees, would have been done by Ebasco. The economic
effect upon Ebasco's employees was precisely that
which would flow from Ebasco's hiring strikebreakers
to work on its own premises.
In Royal Typewriter (228 F.2d at 557), the Second Circuit
approved the "ally" doctrine and Judge Rifkind's "well
reasoned opinion" in the Ebasco case . After reciting the
fact that Royal advised customers that it would make reim-
bursements for repairs during the strike, but that there was
only one incident of Royal contacting an independent re-
pair service directly, the Court held (id. at 558-559):
Apart from that incident there is no evidence that
Royal made any arrangement with an independent di-
rectly. It is obvious, however, that what the indepen-
dents did would inevitably tend to break the strike. As
Judge Rifkind pointed out in the Ebasco case: "The
economic effect upon Ebasco's employees was precise-
ly that which would flow from Ebasco's hiring strike-
breakers to work on its own premises."
r
... Where an employer is attempting to avoid the
economic impact of a strike by securing the services of
others to do his work, the striking union obviously has
a great interest , and we think a proper interest, in pre-
venting those services from being rendered. This inter-
est is more fundamental than the interest in bringing
pressure on customers of the primary employer. Nor
are those who render such services completely uninvolved
in the primary strike. By doing the work of the primary
employer they secure benefits themselves at the same time
that they aid the primary employer. The ally employer
may easily extricate himself from the dispute and insu-
late himself from picketing by refusing to do that work
.... We therefore hold that an employer is not with-
in the protection of § 8(b)(4)(A) when he knowingly
does work which would otherwise be done by the
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
striking employees of the primary employer and where
this work is paid for by the primary employer pur-
suant to an arrangement devised and originated by
him to enable him to meet his contractual obligations.
The result must be the same whether or not the prima-
ry employer makes any direct arrangements with the
employers providing the services. [Emphasis supplied.]
I note that in a law review article cited in Kable's brief,
Levin, "Wholly Unconcerned": The Scope and Meaning of
the Ally Doctrine Under Section 8(b)(4) of the NLRA, 119 U.
Pa. L. Rev. 283, 290 (1970), the author wrote:
Royal Typewriter established the core of the struck
work doctrine: when a secondary does work which but
for the strike would have been done by the strikers,
and that work helps the primary to avoid the strike's im-
pact by continuing to provide goods and services to his
customers in his name , the primary is using the sec-
ondary employees as strikebreakers, and the union
may appeal to them as though the primary had im-
ported them onto his premises. [Emphasis supplied.]
Elsewhere in the article, the author stated (id. at 301) that
"the relevant question is not whether the secondary em-
ployees do the work of striking or nonstriking primary
workers, but whether diverting work to the secondary helps
the primary employer to evade any economic pressure exerted
by the strike." (Emphasis supplied.)
The ally doctrine is inapplicable when, as in United Ma-
rine Division etc., Local 333 (D. M. Picton & Co.), 131
NLRB 693, 698-699 (1961), the secondary employer per-
formed work on its own behalf, at the request of the cus-
tomers, without any arrangement between the struck em-
ployer and the customer or secondary employer, and
without any benefit to the struck employer in reducing the
impact of the strike. In Picton, secondary employer Picton
refused to perform tugboat services for struck employer
Sabine, or at Sabine's request for any vessel under contract
with Sabine for tugboat service. "Sabine conceived no plan
... in which Picton participated" to service Sabine's cus-
tomers during the strike, and the services performed by
Picton (a competitor of Sabine) "did not benefit Sabine in
any way." Accordingly, in "the absence of a direct or indi-
rect arrangement by the struck employer with the customer
or secondary employer (Picton) to have the work performed
for its [Sabine's] account, the secondary employers do not
lose the protection afforded a "neutral" under the Act."
(Emphasis supplied.)
Citing this Picton decision, the Board in Truck Drivers
Local 413, Teamsters (Patton Warehouse, Inc.), 140 NLRB
1474, 1482-83 (1963), found to be illegal a "struck goods"
clause which permitted any employee to refuse to perform
any services which would have been performed by striking
employees, because of the absence of any requirement in
the clause for an "arrangement between the struck and the
secondary employers" under the Royal Typewriter "ally" or
"struck-work" doctrine. In Truck Drivers Local 413 [Patton
Warehouse, Inc.] v. N.L.R.B., 334 F.2d 539, 547, (C.A.D.C.,
1964), cert. denied 379 U.S. 916 (1964), the Court enforced
in relevant part, with this reservation:
We refrain from defining the exact limits of the ally
doctrine, however, and do not decide whether the
[Royal Typewriter] tests are adequate for all variations
in factual situations . Such spelling out is best left for
the elucidating process of gradual inclusion and exclu-
sion provided by specific cases.
Patton, in turn , was cited by the Board in Laborers, Local
859 (Thomas S. Byrne, Inc.), 180 NLRB 502-503 ( 1969),
where independent truck haulers delivered the primary
employer's product during a strike , thereby reducing the
impact of the strike . The striking employees of McDonald,
which was engaged in the business of selling and delivering
stone to construction contractors , had delivered the stone
in McDonald 's trucks before the strike . During the strike,
Byrne and two other contractor customers of primary em-
ployer McDonald-"without encouragement or suggestion
from McDonald"-arranged to have the McDonald stone
delivered to their jobsites by the independent haulers, and
deducted the truck charges from the contract price of the
stone . The Board found that , in the absence of any ar-
rangement between McDonald and the contractor custom-
ers for the delivery of the stone , Byrne and the two other
contractors were not "allies" for the purposes of Mc-
Donald's labor dispute with the union . (The Board did not
directly mention the status of the independent haulers.)
The Court, in Laborers, Local 859 [Thomas S. Byrne, Inc.]
v. N.L.R. B., 446 F .2d 1319, 1321 (C.A.D.C., 1971), agreed
that the customers did not become allies of McDonald by
calling on the independent haulers to deliver the stone, but
found that, despite the absence of any arrangement by Mc-
Donald for the delivery, the independent haulers were "al-
lies" of McDonald:
We hold that the Independents were "struck-work al-
lies" of McDonald. We reject the Board's reasoning
that the delivery of the stone was not "struck-work"
because the arrangements for the delivery were not
made by McDonald.
We hold that any employer whose employees are
performing work which would normally be performed
by striking employees is an ally of the struck employer
and that the work being done is struck work and that
it is not important how the ally gets that work. In [the
Ebasco case] the court laid heavy emphasis on the eco-
nomic effect of the work performed by the ally's em-
ployees. . . . In the Royal Typewriter case . . . the
court held the independent repairmen who performed
the struck work to be allies . In that case Royal told the
customers to whom it was contractually obligated to
render repair service to call an independent repair
company and to then bill Royal for the services. In
only one case did Royal make the arrangement direct-
ly. The court noted these facts and then said: "It is
obvious, however, that what the independents did
would inevitably tend to break the strike."
In terms of the realities of the labor dispute it makes
no difference who makes the telephone call which brings
into the dispute those who do the struck work. Those
who do the work which the striking employees would
otherwise do are the ones who alter the pressures in-
volved in the struggle-it is they who are involved in
the dispute and it is their employer who is the "struck-
work ally." [Emphasis supplied.]
LOCAL 245, GRAPHIC ARTS INTL. UNION 413
G. Concluding Findings
This is not a case , like Picton, where neutral customers
withdrew the work from a struck employer and assigned all
the work to a secondary employer, who performed the
work on its own account , without any benefit to the struck
employer.
Neither is this a case , like Byrne, where the neutral cus-
tomers , "without encouragement or suggestion" from the
struck employer , took actions (arranging replacements for
the struck delivery service) which reduced the impact of
the strike on the struck employer 's remaining business (sell-
ing the stone), thereby helping to break the strike . (Even if
this were such a case , and if struck employer Kable had not
encouraged or suggested that Graphicscans be given the
cylinder-engraving work , Graphicscans would still be
Kable's "ally" under the above-discussed ruling in the D.C.
Circuit, because "In terms of the realities of the labor dis-
pute it makes no difference" whether Kable or American
Home "make[s] the telephone call" or sends the requisition
to Graphicscans to engrave the cylinders.)
Instead , this is a case in which primary employer Kable,
in an effort to obtain the proposed 5-year American Home
printing contract-despite the strike of Kable's photoen-
gravers-arranged for Graphicscans to perform the cylin-
der-engraving work of the striking employees , and ar-
ranged for American Home to issue the cryptic July 11
requisition for the cylinder engraving (for the October issue
and "as necessary " for 11 issues thereafter, without any
mention of price , terms , or conditions). Kable then closely
coordinated the work between its printing plant and Gra-
phicscans ' trade shop , furnishing some of the equipment.
Kable also approved , for American Home , certain extra
charges by Graphicscans , and some overtime ; and, when
Graphicscans sent its invoices to American Home via
Kable 's printing plant, Kable verified the items on the in-
voices for payment by American Home. Although the evi-
dence does not disclose the amount which Graphicscans
charged American Home for this work , the evidence shows
that Kable deducted from the overall engraving-printing-
binding price in the proposed 5-year contract, the amount
Kable would have charged for the cylinder engraving.
Thus secondary employer Graphicscans, pursuant to an
arrangement devised and originated by primary employer
Kable (to test its right to have its customers place requisi-
tions for the struck work), knowingly accepted from cus-
tomer American Home, and performed , the work which
would have been performed by Kable's striking employees
in the absence of the strike. As held in Royal Typewriter,
228 F.2d at 558-559, with reference to the secondary em-
ployers doing struck work, "By doing the work of the pri-
mary employer they secure benefits themselves at the same
time that they aid the primary employer."
I find that Graphicscans, by arrangement with Kable,
performed the struck engraving work on Kable's cylinders,
for Graphicscans' own pecuniary benefit and with full
knowledge that by doing so, it was helping Kable to avoid
the impact of the strike on the remaining American Home
printing and binding work. I therefore find, in the language
of the Supreme Court, that Graphicscans "entangled [itself]
in the vortex of the primary dispute." National Woodwork,
386 U.S. at 627.
Accordingly, I find that Graphicscans became Kable's
ally, performing struck work, and that the Union's notifica-
tion of Graphicscans that its photoengravers would not en-
grave Kable's cylinders was lawful, primary activity.
CONCLUSIONS OF LAW
1. When secondary employer Graphicscans, by arrange-
ment with primary employer Kable, knowingly and for its
own pecuniary benefit accepted from customer American
Home and performed the cylinder-making work which
Kable's striking photoengravers would have performed in
the absence of the strike, it performed struck work to aid
the primary employer and thereby entangled itself in the
vortex of the primary dispute, becoming Kable's ally, with-
in the principles of Royal Typewriter and National Wood-
work.
2. By notifying Graphicscans, an ally of Kable in the
primary dispute, that Graphicscans' employees would not
do the struck work, the Union acted lawfully and did not
violate Section 8(b)(4)(ii)(B) of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER3
The consolidated complaints are dismissed in their en-
tirety.
3In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.