Local 51, Graphic Communications Union

National Labor Relations Board - Board Decisions

Jan 23, 1979

240 N.L.R.B. 25 (N.L.R.B. 1979)

LOCAL 51, GRAPHIC COMMUNICATIONS UNION 25
Local 51, International Printing & Graphic Communi-
cations Union, AFL-CIO and John Gillen and
Master Eagle Photoengraving Corp., Party In Inter-
est. Case 29-CB-2792
January 23, 1979
DECISION AND ORDER
BY MEMBER PENELLO, MURPHY. AND TRUESDALE
On September 6, 1978, Administrative Law Judge
Irwin Kaplan issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
an answering brief.
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.
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 complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge: This case was
heard before me in Brooklyn, New York, on December 19-
20, 1977. The charge was filed by John Gillen on February
18, 1977, and a complaint issued thereon on July 29, 1977.
The gravamen of the complaint is that since on or about
January 4, 1977, Master Eagle Photoengraving Corp.'
(herein called Party In Interest) has established and main-
tained a policy in which it has discriminated in hiring and
tenure of employment on the basis of age, as manifest by
its refusal to employ John Gillen, Philip Seibel, and George
Wagner and that Local 51, International Printing &
Graphic Communications Union, AFL-CIO (herein called
Respondent or Local 51), has agreed to or has acquiesced
in said policy in violation of Section 8(b)(IXA) of the Na-
tional Labor Relations Act, as amended, herein called the
Act. Respondent filed an answer conceding, inter alia, ju-
The name appears as amended at the hearing.
240 NLRB No. 25
risdictional facts but denying all allegations that it commit-
ted any unfair labor practices.
Upon the entire record, including my observation of the
testimony and demeanor of the witnesses, I hereby make
the following:
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, it is admitted, and I find that
Master Eagle Photoengraving Corp, (herein called Master
Eagle) is a New York corporation engaged in the business
of providing photoengraving, photolithography, typogra-
phy, gravure, and related services. During the past year
Master Eagle purchased and caused to be transported to its
principal place of business in New York City printing sup-
plies and other goods and materials valued in excess of
$50,000 directly from points outside the State of New
York. It is admitted and I find that Master Eagle is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that Respondent, Local 51,
International Printing & Graphic Communications Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of Events
Intaglio Service Corporation (herein called ISC) owned
and operated a number of facilities throughout the United
States, including a plant located at 33-100 Terrace Point
Avenue, Long Island City, New York. ISC was experienc-
ing financial difficulties with regard to the operation of its
Long Island City plant, and in September or October 1976,
Leonard Pinover, president of ISC, commenced negotia-
tions with Mario Gambaccini, president of Master Eagle,
for the sale of said Long Island City plant. Prior thereto
Master Eagle operated a photoengraving division and a
lithographic division. For almost 2 years Master Eagle had
actively pursued expansion into gravure printing. Thus, in
1975 it acquired additional floorspace and an Italian four-
color proofing press for future use in a new gravure divi-
sion. Further, in 1976 Master Eagle hired John Luciani and
Vincent Gianquinto, former ISC journeyman pressmen
with gravure experience, to work on preliminary planning,
experimentation, and related tasks. ISC was principally in-
volved at Long Island City in gravure offset and letterpress
in the advertising or publication field. The negotiations be-
tween ISC and Master Eagle culiminated in an agreement
in December 1976, effective January 1, 1977, whereby, in-
ter alia, Master Eagle purchased the physical assets of
ISC's Long Island plant and the right to use the "Intaglio"
name at Master Eagle's principal place of business in New
York City. The new division was called Intaglio Service
Co. of New York City (at times referred to herein as new
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intaglio). The pressroom continued to operate out of Long
Island City until July 1977, at which time it was moved to
Master Eagle's facility in New York City. At the same time
that Gambaccini purchased ISC's Long Island facility, he
also acquired the services of Pinover as general manager of
the newly acquired plant. Prior to the sale, the pressroom
employees at the Long Island facility had been represented
along jurisdictional lines for a period in excess of 15 years.
In this regard, the record reveals that one group of employ-
ees, classified as journeyman pressmen and apprentice
pressmen, was represented by Local 51, International
Printing & Graphic Communications Union, while another
group of employees, classified as press assistants (also
called feeders), was represented by Press Assistants Union,
Local 23 (hereinafter called Local 23). Both local unions
belonged to the International Printing & Graphic Commu-
nications Union (hereinafter called the International) and
were chartered respectively by said International to repre-
sent employees only in the classifications noted above. Ac-
cording to Gambaccini, it was determined that the entire
gravure operation under Master Eagle would be run by
pressmen, and the pressman assistant (feeder) classification
would be eliminated. Local 51 President William Cernera,
who had learned of Master Eagle's interest in expanding
into gravure printing and was aware of its active efforts to
purchase ISC's Long Island City pressroom, conveyed to
Gambaccini in late November 1976 that he wanted to con-
tinue to represent the pressmen. In December 1976, after
the agreement was reached to purchase new Intaglio, Cern-
era pressed for recognition. Gambaccini testified that he
was generally receptive to affording bargaining status to
Local 51 because, inter alia, he only wanted to employ
pressmen in the pressroom, and Local 51 is a pressmen's
union. Further, Gambaccini testified that he wanted to
deal with one union rather than two unions for the press-
room employees, and in this regard Local 51 was prefera-
ble to Local 23 or another union for the additional reason
that Master Eagle already employed John Luciani and
Vincent Gianquinto, both journeyman pressmen and Local
51 members. However, Gambaccini told Cernera that Mas-
ter Eagle did not want to be bound by the master agree-
ment and that a new contract would have to be negotiated.
By letter dated January 4, 1977,2 Gambaccini wrote to
Cernera as follows: 3
Dear Mr. Cernera:
As per our discussions this letter is to serve as a
Letter of Intent between Master Eagle family of Com-
panies and the N.Y. Printing Pressmen and Offset
Union #51 I.P. & G.C.U. for the Jurisdiction of the
gravure pressroom unit.
A final contract between the parties for the terms
and conditions is forthcoming.
Sincerly yours,
Mario Gambaccini
President
Master Eagle Photo Engraving Corp.
2 All dates hereinafter refer to 1977, unless otherwise indicated.
'G.C. Exh. 5.
Also on January 4, Pinover summoned ISC's employees
by department and informed them that the assets were sold
to Master Eagle and that he, Pinover, had been retained to
manage the plant by Master Eagle. In addition, he in-
formed sales, office, and photoengraving employees that he
would hire or retain them for employment at new Intaglio.
Pinover told the pressroom employees that he would try to
employ as many of them as possible. However, the press-
man assistants (feeders) were told that New Intaglio had a
four-color press and that the manning requirements would
be different for that press, as well as for the smaller L & M
presses which were previously used by ISC. He declared
that he would hire only those employees who could be
trained to operate such equipment. The only feeders on the
Company's payroll at that time were the three alleged dis-
criminatees (John Gillen, Philip Seibel, and George Wag-
ner) and John Bergonzi, all of whom were laid off com-
mencing January 6. On the same day, Gillen, Seibel, and
Wagner complained about the layoffs to Manuel Mosoco,
president of Local 23. On February I, Mosoco filed unfair
labor practice charges against ISC and Master Eagle in
furtherance of Local 23's claim for continued representa-
tion of the feeders. Within a few days, Gambaccini and his
partner, Andrew Shahinian, met with Mosoco and Cernera
in an attempt to resolve the charges and the question con-
cerning representation. Gambaccini and Shahinian told the
union officials that the Company wanted to employ only
pressmen in the pressroom and to eliminate the feeder, or
assistant, classification. In addition, they told the union
officials that Master Eagle wanted to deal with only one
union for the entire pressroom and that they should work
out the question concerning representation themselves. The
union officials enlisted the assistance of International Pres-
ident Sol Fishko and met with him on February 4 to settle
the representation conflict. It was decided that Local 51
would have jurisdiction in the pressroom and that former
members of Local 23 classified as assistants at ISC and
employed by new Intaglio would be classified and trained
to be journeyman pressmen. Mosoco did not press Local
23's representation claim further and withdrew the unfair
labor practice charges. On or about February 7, Cernera
informed Gambaccini and Shahinian that the representa-
tion conflict between the sister locals had been resolved in
favor of Local 51 and requested to commence contract ne-
gotiations. Gambaccini told Cernera that Pinover would be
in charge of negotiations on behalf of the Company. The
union negotiation team included Cernera, Union Business
Representative Thomas McMahon (who headed the team),
and two rank-and-file employees. On several occasions
prior to and during the course of negotiations which com-
menced on or about April 18, Pinover expressed certain
attributes which he was looking for in training employees
on the four-color prima press, including physical dexterity
and youth.4 Cernera and McMahon testified that they told
Pinover that all pressmen had to be trained on the four-
color press and other new equipment. According to the
General Counsel, Pinover discriminated against Gillen,
Seibel, and Wagner on the basis of age, and Local 51 un-
4 The four-color prima press is larger and phslicall more demanding to
operate Ilhan the I. & M single presses presiiousl run hy journeyman press-
men at ISC.
LOCAL 51, GRAPHIC COMMUNICATIONS UNION 27
lawfully acquiesced in such conduct in violation of Section
8(b)( )(A) of the Act. The General Counsel argues that age
discrimination was manifest, inter alia, by Pinover's em-
phasis on youth in his discussions with Local 51 represen-
tatives. Further, the General Counsel asserts that on the
basis of the ages of the former ISC assistant pressmen hired
by Pinover for employment at new Intaglio, he demon-
strated a pattern in hiring of deferring to younger employ-
ees over the alleged discriminatees or older employees. In
contrast, Master Eagle and Local 51 assert that any refer-
ence to "youth" made by Pinover or other company offi-
cials related to training on the four-color press and not to
hiring. Further, they dispute that the record establishes any
pattern in hiring to defer to younger employees. Still fur-
ther, Local 51 maintains that the alleged discriminatees
were not in the bargaining unit at any time material
herein,5 nor did any of them at any time request Local 51
to intervene on their behalf or represent them in their ef-
forts to attain employment at new Intaglio.
B. Discussion and Conclusion
As previously noted, the General Counsel asserts that
Gillen, Seibel, and Wagner were discriminated against and
denied employment at new Intaglio because of their ages
and, as a concomitant thereof, Respondent's acquiescence
therein violated Section 8(bI 1)(A) of the Act. According to
the General Counsel, new Intaglio's hiring practices reveal
a pattern to defer to younger employees. In this regard, the
Employer's employment records reveal that at the time
Pinover advised the ISC pressroom employees of the Mas-
ter Eagle transaction and the impending layoffs, the only
assistant pressmen on the payroll were John Bergonzi, who
was 47 years old, and the three alleged discriminatees. Gil-
len, Seibel, and Wagner, who were 44, 44, and 62 years old,
respectively.6 All four assistant pressmen were laid off on
January 6, but only Bergonzi was provided employment at
new Intaglio. On February 6, Pinover hired Bergonzi, Fred
Hollman, and Frederic Myers. Hollman and Myers had
previously worked for ISC as assistant pressmen and had
less seniority than the alleged discriminatees. Pinover con-
cedes that he was not interested in seniority, but rather in
how well employees could be trained as operators on the
four-color press and other equipment. Hollman and Myers
were 35 and 36 years old, respectively, and younger than
Gillen, Seibel, and Wagner. The record discloses that by
the time the instant unfair labor practice charges were filed
on February 18, Bergonzi, Hollman, and Myers were the
only former assistant pressmen hired for new Intaglio. The
ages of these individuals hardly establishes any pattern to
defer to younger employees, particularly as Bergonzi is old-
It is noted that the complaint does not allege that new Intaglio or Master
Eagle is a "successor" employer and as such is obligated to hire former ISC
employees, but rather the thrust of the General Counsel's case is predicated
on alleged age discrimination practiced hby new Intaglio in its hiring prac-
tices and unlawfully acquiesced n by Respondent
(G.C. Fxh 8 A F. While Gillen's employment record (G.C. Exh. 8A)
indicates that he was 44 years old at the time of the hearing, he testified that
he was horn in 1931, which would have made him 46 ears old at that time.
In any event, it is undisputed that Bergonzl is older than both Gillen and
Seibel.
er than two of the three alleged discriminatees. Further, I
find that the record falls far short of establishing a pattern
of age discrimination at any material time herein. The
breakdown below lists the dates of hire of all pressmen
employed by new Intaglio from January to the time of the
instant hearing, their previous classifications at ISC, and
their ages at the time of said hearing as follows:
Date Name
1/6 V. Gianquinto
1/6 1. Johnson
1/6 J. Luciani
1/6 if. Temeck
1/19 Barca
1/19 Hiirsh
1/19 Lombardo
1/19 Sheridan
Classification Ae
pressman
pressman
pressman
pressman
pressman
pressman
pressman
pressman
asst. pressman
asst. pressman
asst. pressman
pressman
55
55
52
62
58
53
57
45
47
35
36
57
2/6
2/6
2/6
J. Bergonzi
F. ollman
F. Myers
3/10 Schultz
3/31 S. Atanasio
4/5 Riffenbury
asst. pressman 34
pressman 58
The above age breakdown of the 14 journeyman press-
men and apprentice pressmen 7 hired by Pinover to work in
the pressroom at new Intaglio discloses that I of them are
older than Gillen and Seibel. While it is true that most of
these individuals were formerly journeyman pressmen at
ISC and not assistants, I find it significant that their aver-
age age is over 55 years. The relatively senior age of the
pressmen strongly militates against any initimation that
Pinover's hiring practices reflected an accent on youth.
Further, for reasons previously noted, I do not find that the
ages of the former ISC assistants hired by Pinover reveal a
pattern of age discrimination. The above breakdown dis-
closes that on two occasions Pinover hired former ISC as-
sistant pressmen for new Intaglio. The first occasion was
on February 6 and, as previously discussed, involved Ber-
gonzi (who is senior in age to two of the three alleged dis-
criminatees), Hollman, and Myers. On March 31, Pinover
hired Saturnio Atanasio, the only other former assistant
pressman who was employed at new Intaglio by the time of
the instant hearing. It is noted that Atanasio was hired
1-1/2 months after the instant charges were filed, and
while the record discloses that Atanasio is younger than the
alleged discriminatees, it does not appear likely that Pin-
over was unlawfully motivated in the face of pending un-
The apprentice pressmen were assistants at ISC and members of Local
23
-
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fair labor practice charges predicated, inter alia, on the al-
leged age discrimination. Rather, I find Pinover's assertion
that he hired Atanasio and the other former ISC assistants
because he believed that they were better suited to be
trained to operate the four-color and other presses more
plausible. The General Counsel relies largely on Cernera's
affidavit as read into the record wherein he stated, "The
Company advised us that it wanted Local 51 to have juris-
diction but that it would want younger people to learn
these presses." While Cernera was unable to specify when
the aforenoted reference to "younger people" was made, it
appears that it was made after Bergonzi, Hollman, and
Myers (former assistant pressmen) had been hired for em-
ployment at new Intaglio. Thus, Cernera testified that
"during that period of time they were hiring, they [former
assistant pressmen] were already hired at that time." In any
event, Cernera's assertion that the Company's reference to
"younger people" was with regard to training on the four-
color press and related equipment and not hiring, is sup-
ported by the credible evidence. In this regard, I find that
the phrase "learn these presses" as stated in the affidavit is
entirely consistent with the notion that it was used to con-
note "training" on the presses. I also credit Cernera's testi-
mony that he expressed to Pinover that the Union's posi-
tion was for all pressmen to be trained to operate the
equipment. Cernera's testimony was substantially corrobo-
rated by the uncontroverted testimony of Union Business
Representative McMahon. McMahon credibly testified
that, at the first negotiating session on April 18, Pinover
expressed that he would like to train employees on the
four-color press who had "physical dexterity, youth, train-
ability, experience to maneuver up and down the stairwells,
[and] to lift heavy plate cylinders .... " McMahon testi-
fied further that he and Cernera responded that the Union
would not qualify anybody for training purposes and "that
all employees in the pressroom under our jurisdiction
would have to be trained on the [four-color] press." Ac-
cording to McMahon, the Company did not delineate
again the qualifications that pressmen had to have in order
to be trained on the four-color press or related equipment.
The collective-bargaining agreement executed by the par-
ties on June 20 tends to support the Union's assertion that
its position consistently was that all pressmen would be
trained on all equipment. Thus, the contract provides in
pertinent part:
SECTION 21
MANNING
21.3 Employees to be trained on all equipment as per
the Employer's needs.8 [Emphasis supplied.]
On the basis of the foregoing and the entire record, not-
ing particularly that the large majority of pressmen hired at
new Intaglio are older than two of the three alleged dis-
criminatees, I find that the evidence is insufficient to estab-
lish that Master Eagle's hiring practices were predicated in
sSee G.C. Exh. 6, p. 19.
whole or in part on age discrimination. Similarly, I find
that the evidence is insufficient to establish that Master
Eagle was motivated by age considerations when it hired
former ISC assistant pressmen Bergonzi, Hollman, and
Myers rather than the alleged discriminatees. The inesca-
pable fact is that Bergonzi, as noted previously, is older
than two of the three alleged discriminatees. Having found
that the evidence is insufficient to establish that Master
Eagle discriminated against Gillen, Seibel, and Wagner be-
cause of their age, afortiori, I find that Respondent did not
acquiesce in such policy.
The General Counsel argues additionally that assuming,
arguendo, the record herein does not establish that Master
Eagle practiced age discrimination, "the actions of Local
51 were inconsistent with its obligation to represent fairly
the individuals involved." I find that the General Counsel's
alternative contention is also without merit. First, the rec-
ord does not establish that the alleged discriminatees were
members of the bargaining unit represented by Local 51 at
any time material herein. In this regard, it is noted that the
assistant pressmen were all laid off on January 6, at a time
when Local 51 had not become the exclusive bargaining
representative for the pressroom employees. The letter dat-
ed January 4 sent by Master Eagle President Gambaccini
to Respondent President Cernera relied on by General
Counsel does not by itself accord bargaining status on Lo-
cal 51 for the entire pressroom but is rather evidence of
Gambaccini's intent to recognize Local 51 at a later date.
Thus, the letter reads in relevant part:
Dear Mr. Cernera:
As per our discussion this letter is to serve as a Let-
ter of Intent .... for the jurisdiction of the gravure
pressroom unit. [Emphasis supplied.] 9
As Local 23 represented the assistant pressmen at ISC
and continued to press its claim to represent said unit at
new Intaglio, including filing unfair labor practice charges
in support thereof, a substantial rival claim for pressroom
employees by Local 23 was evident. Local 51 did not be-
come the exclusive bargaining agent over the entire gravure
pressroom unit until the substantial rival claims were pre-
sented to the international president in February and re-
solved in favor of Local 51. As heretofore noted, Local 23
thereupon did not press its claim further and withdrew its
unfair labor practice charges. Thus, on January 6, at the
time the alleged discriminatees were laid off, Local 23, and
not Local 51, was their bargaining representative. More-
over, it is undisputed that the alleged discriminatees did
not at any time seek the assistance of Local 51 for repre-
sentation to help them secure employment at new Intaglio.
In sum, I find that the General Counsel has not estab-
lished by a preponderance of the credible evidence that
Local 51 acquiesced in or agreed to age discrimination or
otherwise violated Section 8(b)(1XA) of the Act. Accord-
ingly, I shall recommend that the complaint be dismissed
in its entirety.
°G.C. Exh. 1(t).
LOCAL 51, GRAPHIC COMMUNICATIONS UNION 29
CONCLUSIONS OF LAW
1. Master Eagle Photoengraving Corp. is an employer
within the meaning of Section 2(2) of the Act and is en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Respondent, Local 51, International Printing and
Graphic Communications Union, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. The General Counsel has not established by a pre-
ponderance of the evidence that Respondent has violated
Section 8(b)(IXA) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER '0
The complaint is hereby dismissed in its entirety.
10 In 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.