Nashua Printing Pressmen & Assistants' Un. No. 359

National Labor Relations Board - Board Decisions

Aug 19, 1974

212 N.L.R.B. 942 (N.L.R.B. 1974)

942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nashua Printing Pressmen and Assistants ' Union No.
359 and Telegraph Publishing Company and Nashua
Typographical Union No. 365 , International Typo-
graphical Union . Case 1-CD-386
August 19, 1974
DECISION'AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
Accordingly, we find, as the parties have stipulated,
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the policies of the Act to assert jurisdiction
herein.
II THE LABOR ORGANIZATIONS
The parties stipulated, and we find, that the Press-
men and the Typographers are labor organizations
within the meaning of Section 2(5) of the Act.
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by Telegraph Publishing Company,
herein called the Employer, alleging that Nashua
Printing Pressmen and Assistants' Union No. 359,
herein called the Pressmen, has violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requiring
the Employer to assign certain work to employees
represented by the Pressmen rather than to employees
represented by Nashua Typographical Union No.
365, International Typographical Union, herein
called Typographers.
Pursuant to notice, a hearing was held before Hear-
ing Officer Robert C. Rosemere on March 5 and 6,
1974, at Boston, Massachusetts. All parties appeared
at the hearing and were afforded full opportunity to
be heard, to examine and cross-examine witnesses,
and to present evidence bearing on the issues. There-
after, the Employer, Pressmen, and Typographers
filed briefs.
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 reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed. The Board has considered the entire record
in this case and hereby makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
Telegraph Publishing Company is engaged in the
publication of a daily newspaper in Nashua, New
Hampshire. During the past 12-month representative
period, the Employer's gross volume of business ex-
ceeded $200,000. During the same period, the Em-
ployer received at its New Hampshire location from
points outside the State of New Hampshire materials,
mainly newsprint, valued in excess of $50,000. The
Employer also subscribes to interstate news services. pate.
III THE DISPUTE
A. The Work in Dispute
The work in dispute consists of the making of pho-
to-polymer plates at the newspaper plant of Telegraph
Publishing Company at its Nashua , New Hampshire,
location.
B. Background and Facts of the Dispute
The Pressmen and the Typographers have tradi-
tionally represented separate units of certain of the
Employer's employees.
Prior to May or June 1973, the Employer utilized
the traditional hot metal process in its printing opera-
tion. In this process, news and editorial material is
reproduced by means of metal plugs of type which are
arranged into lines and used to make impressions on
celluloid mats. Illustrative material is photoengraved
onto metal sheets, which are used instead of metal
type to impress the mats. The mats, in turn, receive an
injection of hot metal from which a semicylindrical
plate is formed. It is this plate which is fastened to the
press and used to do the actual printing of a newspa-
per page.
At the Employer's plant prior to May or June 1973,
employees represented by the Typographers set type
and made the mats, which were used by employees
represented by the Pressmen to make the printing
plates. Employees represented by the Typographers
also performed a small amount of the photengraving
required for illustrative material.
Under the Employer's new direct printing method,
which came into use in May or June 1973, copy is
photographed' and reproduced onto a thin metal
plate whose surface is coated with a chemical emul-
sion. This emulsion reacts under certain light frequen-
cies to form a relief surface on the plate without the
use of acids or any other strong chemicals. Because of
1 This photography is performed by the Typographers and is not in dis-
212 NLRB No. 138
NASHUA -PRINTING PRESSMEN & ASSISTANTS' UN. NO. 359 943
its tensile strength and flexibility this sheet, called a
photo-polymer plate, can then be bent into the requi-
site semicylindrical shape and affixed to the press
directly by means of a device called a saddle. The
need for the mats, required in the formation of the
semicylindrical plates used in the traditional'printing
method, is thereby eliminated.
The Employer's current contract with the Typogra-
phers contains a clause providing that the jurisdiction
of the Typographers shall include, inter alia:
Operation of the production process cameras;
production process darkroom processing; color
separation; masking; stripping; opaquing and
correcting film; and operation of photo-engrav-
ing process.
The contract between the Employer and the Pressmen
requires the Employer to use a complement of eight
journeymen and two apprentices of that craft and
further states: "It is agreed that the above comple-
ment of men shall perform combination press-stereo
work."
By letter dated May 15, 1973, the Employer as-
signed the making of the photo-polymer plates to the
Pressmen. On June 13, 1973, the president of the Ty-
pographers wrote to the Employer, alleging that the
assignment of the disputed work to the Pressmen vio-
lated the terms of the Employer's collective-bargain-
ing agreement with the Typographers. The
Typographers also requested the Employer to arbi-
trate the issue which the Employer refused to do.
Thereafter, on October 12, 1973, the Employer was
ordered by the United States District Court for the
District of New Hampshire to arbitrate the issue as to
whether the assignment to the Pressmen violated its
contract with the Typographers. The Pressmen were
invited to participate in the arbitration proceeding but
declined to do so. The board of arbitration was select-
ed by the Employer and the Typographers in accor-
dance with their contractual arbitration provision. By
mutual accord, a three-man board was substituted for
the five-man board called for in the collective-bar-
gaining agreement.
On January 14, 1974, the arbitration panel issued its
award, concluding that the assignment of the disputed
work to the Pressmen violated the Employer's collec-
tive-bargaining agreement with 'the Typographers.
Thereafter, on January 22, 1974, the Employer re-
ceived a letter from the president of the Pressmen
advising that if the disputed work were assigned to the
Typographers, the Pressmen would strike immedi-
ately. That same day the Pressmen voted to strike if
the work were reassigned to the Typographers and so
notified the Employer. The Employer, in compliance
with the arbitration award, assigned the work of mak-
ing photo-polymer plates to the employees repre-
sented by the Typographers. However, as of the date
of the hearing herein, the Pressmen have not struck
the Employer.
On January 24, 1974, the Employer filed the instant
charge, alleging that the Pressmen, by threatening to
strike and by advising the Employer of its strike vote,
violated Section 8(b)(4)(ii)(D) of the Act.
C. Contentions of the Parties
The Typographers contends that the charge herein
should be dismissed and the notice of hearing
quashed on the grounds that no.reasonable cause ex-
ists to believe that Section 8(b)(4)(D) of the Act has
been violated. The Typographers bases this conten-
tion on the fact that the Pressmen Local Union No.
359 was instructed by the Pressmen's International
president, in a letter dated October 29, 1973, to threat-
en strike if the disputed work were assigned to the
Typographers in order to invoke Section 10(k) of the
Act. Therefore, the Typographers argues, the purpose
of the Pressmen's threat to strike was not to "threaten,
coerce, or restrain" the Employer within the meaning
of Section 8(b)(4)(ii)(D) but, rather, to invoke the
Board's procedures for determination of the dispute.
As to the merits of the dispute, the Typographers
contends that, on the basis of its contract as interpret-
ed by the arbitrators, all photo-polymer platemaking
should be assigned to the employees whom it repre-
sents.
The Employer contends that the January 22, 1974,
letter from the Pressmen threatening to strike, and the
notification to the Employer of the unanimous strike
vote by the Pressmen, satisfy the requirement that in
order for Section 10(k) of the Act to be invoked there
be reasonable cause to believe that Section 8(b)(4)(D)
has been violated. Accordingly, the Employer oppos-
es quashing the notice of hearing. On the merits, the
Employer contends that the disputed work should be
awarded to employees represented by the Pressmen
on the basis of (1) the Employer's original assignment
and preference, (2) efficiency of the Employer's oper-
ations and the tradition that platemaking has been
performed by employees represented by the Press-
men, (3) the adverse impact on the jobs held by em-
ployees represented by Pressmen if the disputed work
is assigned to employees represented by the Typogra-
phers, and (4) the Employer's collective-bargaining
agreement with the Pressmen. The Pressmen, takes the
same position on the merits as the Employer. In addi-
tion, both the Pressmen and the Employer contend
that the arbitration award should not be considered as
controlling inasmuch as the Pressmen was not a party
944
to that proceeding.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Applicability of the Statute
Before the Board may proceed to the determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that (1) there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated, and
(2) the parties have not agreed upon methods for the
voluntary adjustment of the dispute.
As to (1), above, the record shows that, after the
arbitrators' award of the work in dispute to the Ty-
pographers, the Pressmen wrote to the Employer stat-
ing that if the platemaking work were assigned to
employees represented by the Typographers the
Pressmen would strike. The record further shows that
a strike vote was taken by the Pressmen , that the
members unanimously voted to strike if the Employer
reassigned the disputed work, and that the Employer
was so advised. We find on these facts that reasonable
cause exists to believe that Section 8(b)(4)(D) of the
Act has been violated.'
As to (2), above, it is clear from the record that
neither labor organization's collective-bargaining
agreement with the Employer provides for tripartite
arbitration and that the Pressmen was not party to, or
bound by, the arbitration proceeding between the
Employer and Typographers, which, in any event,
was limited to interpretation of the contract. Thus we
find that no agreed-upon method exists for the volun-
tary adjustment of the dispute which is binding upon
all of the parties. Accordingly, we find that the dispute
is properly before the Board for determination under
Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving
due consideration to various relevant factors, includ-
ing the following:
1. Certification and collective-bargaining
agreements
The record does not indicate that either the Typog-
raphers or Pressmen has ever been certified as the
representative of any of the Employer's employees.
As discussed supra, the Employer's contract 3 with
2 Carpenters District Council of Denver and Vicinity (Godwin Bevers Co,
Inc.), 205 NLRB 155 (1973), In 9.
3 The contract between the Employer and the Typographers in effect at the
time of the Employer's assignment of platemaking to the Pressmen expired
on December 31, 1973 It appears from the record , however, that the
agreement 's terms remained in effect while the parties were negotiating a new
contract
the Typographers provides that employees repre-
sented by the Typographers shall do photoengraving
work. The arbitration panel found that photo-poly-
mer plates are produced by a photoengraving process
and that, therefore, employees represented by the Ty-
pographers are entitled, under the latter's collective-
bargaining agreement with the Employer, to perform
the disputed work. We note, however, that "engrav-
ing," by definition, involves the removal, not addi-
tion, of material.
The Employer's collective-bargaining agreement
with the Pressmen, as described above, provides that
Pressmen shall perform "press-stereo" work. The Em-
ployer and the Pressmen contend that, since the new
platemaking process replaces stereo work previously
performed by employees represented by the Press-
men, employees represented by the Pressmen are enti-
tled to the work in dispute under its contract with the
Employer.
We find that both the Typographers and the Press-
men contracts with the Employer arguably cover the
disputed work. However, neither agreement specifi-
cally refers to photo-polymer platemaking and we do
not consider the arbitration award controlling .4
Therefore we cannot, and do not, accord controlling
weight to either of the collective-bargaining agree-
ments in making our determination.
4 it is well settled that the Board is not bound in a jurisdictional dispute
by the results of an arbitration proceeding which one of the parties did not
agree to and in which it did not participate international Die Sinkers ' Confer-
ence and Detroit Die Sinkers' Lodge No 110 (General Motors Corporation), 197
N LRB 1250 (1972), Metal Polishers, Buffers, Platers and Helpers International
Union, Local 128, AFL-CIO (Thorsen Mfg Co), 193 NLRB 534, 539 (1971)
That is particularly true where , as here, the arbitration is limited to interpreta-
tion of only one of two contracts involved in the dispute
Our dissenting colleague's interpretation of the effect of an arbitrator's
award is at odds with the conclusion of the U S Supreme Court in Carey v
Westinghouse Electric Corporation , 375 U S 261 ( 1963) It is true that the
Supreme Court there held that, although a jurisdictional dispute existed, the
union seeking arbitration was entitled to an order directing the employer to
proceed under the contract clause even though the other union would not be
a party thereto , and the Court noted that the Board might defer to such an
award in a 10(k) or a unit clarification proceeding But the Court clearly
stated (at p 272 ) "The superior authority of the Board may be invoked at
any time" and "Should the Board disagree with the arbiter the Board's
ruling would, of course, take precedence " Also indicating that such an
award is not binding even though the employer participated is the holding
(at p 268 ) that in the circumstances "a suit either in the federal courts, as
provided by § 301(a) or before such state tribunals as are authorized to
act is proper , even though an alternative remedy before the Board is
available , which, if invoked by the employer, will protect him."
Contrary to our dissenting colleague, in a circumstance such as is present-
ed in the instant case , the Board must make its own determination as to which
group of employees is entitled to work upon consideration of all relevant
factors N L R B v Radio and TV Broadcast Engineers Union (Columbia
Broadcasting System), 364 U S 573 ( 1961) Such consideration requires our
independent evaluation and interpretation of the agreements of the parties
where , as here, each contract is ambiguous and the arbitration has been held
pursuant to a commitment to which one of the parties was not bound To
base our determination upon the award in such an arbitration proceeding
would be to abdicate our position and authority and be derelict in the
performance of our duties.
NASHUA PRINTING PRESSMEN & ASSISTANTS' UN. NO. 359 945
2. Employer and area practice
The Employer has utilized the photo-poiymer plate
only since about May or June 1973. As discussed
above, the Employer originally assigned the making
of photo-polymer plates to the Pressmen, who per-
formed this work to the Employer's satisfaction until
the arbitration award was issued in January 1974.
Accordingly, the Employer's past practice with regard
to this plate is limited. We note however, that under
the traditional printing method in the Employer's
plant employees represented by the Typographers
prepared the mats from which employees represented
by the Pressmen cast the semicylindrical plates which
were affixed to the press. The employees represented
by the Typographers did not make plates which were
actually used to print a newspaper page. The photo-
polymer plate, like the old semicylindrical lead plate,
is attached to the press and is a substitute for the lead
plates cast by the pressmen. Since the photographic
negatives used to make the photo-polymer plates are
prepared by the typographers, the relative functions
of both groups would be unaffected by an award to
the pressmen. Therefore, the Employer's past practice
of assigning lead platemaking to employees repre-
sented by the Pressmen tends to favor award of the
work in dispute to the pressmen.
With respect to area practice, the record indicates
that three other newspapers in New England, the
Woonsocket Call, the, Dedham Transcript, and the
Stamford Advocate, use photo-polymer plates. At the
Woonsocket Call and the Dedham Transcript, the
plates are made by employees represented by a local
of the International Typographical Union, while at
the Stamford Advocate the employees who make
these plates are represented by Local 175 of the Print-,
ing Pressmen. On this record, therefore, we find that
the evidence with respect to area practice does not
clearly favor assignment of the disputed work to
either the employees represented by the Typographers
or to those represented by the Pressmen.
3. Skills, efficiency, and economy
It is undisputed that both the employees repre-
sented by the Pressmen and those represented by the
Typographers have performed the disputed work sat-
isfactorily.
The Employer's publisher testified that the original
assignment of the disputed work to the employees
represented by the Pressmen was based on consider-
ations of efficiency and economy. Thus, the
Employer's witnesses testified that the Employer ob-
tains greater flexibility in its operations by assigning
the making of photo-polymer plates to the same em-
ployees who affix them to the presses, i.e., those repre-
sented by the Pressmen, particularly since platemak-
ing is performed in an area adjacent to the pressroom.
Moreover, the supervisor of the typographers is locat-
ed in the composing room, which is in another build-
ing two floors above the area where the platemaking
equipment is located. Thus, supervision is more diffi-
cult if employees represented by the Typographers,
rather than those represented by the Pressmen, per-
form the disputed work.
4. Effect on employment
It appears from the record that one journeyman
pressman was laid off due to the reassignment of the
platemaking work to the Typographers.' However,
the Employer's publisher testified at the hearing that
even if the disputed work were awarded to the Press-
men, there was no assurance that this employee would
be recalled. He further testified that the Employer did
not anticipate the layoff of any employees represented
by the Typographers if the work were awarded to
employees represented by Pressmen. In these circum-
stances, we find that the factor of impact on jobs
tends to favor an award to the employees represented
by the Pressmen .6
Conclusion
Upon the record as a whole, and after full consider-
ation of all relevant factors involved, we conclude that
the Telegraph Publishing Company employees who
are represented by the Pressmen are entitled to per-
form the work in dispute. We reach this conclusion
upon the Employer's original assignment of the dis-
puted work to these employees; the fact that the
award leaves both groups in the same relative position
they were in before the introduction of the new pro-
cess; the loss of employment for pressmen which may
result from a contrary award; and the fact that such
assignment will result in greater efficiency and econo-
my of operations. We further find that such an award
is neither contrary to the collective-bargaining agree-
ments, which in any event are not controlling,7 nor
inconsistent with area practice and that the employees
represented by the Pressmen posses the requisite skills
5 It is undisputed that another employee represented by the Pressmen was
terminated when he went from apprentice to journeyman status. However,
this termination occurred prior to the arbitration award to the Typographers
and was occasioned by the fact that the Employer had no vacant jobs for
another journeyman pressman at the time We therefore do not find that this
employee was terminated because of the Employer's reassignment of the
dis6puted work to the Typographers.
International Die Sinkers ' Conference, supra.
r N L R B v . Radio and Television Broadcasting Engineers Union, Local
1212, International Brotherhood of Electrical Workers , AFL-CIO [Columbia
Broadcasting System], 364 U S . 573 (1961)
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to perform the work. Accordingly, we shall determine
the dispute before us by awarding the disputed work
at the Employer's publishing plant in Nashua, New
Hampshire, to the Employer's employees represented
by the Pressmen, but not to that Union or its mem-
bers.
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 pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
Employees of Telegraph Publishing Company of
Nashua, New Hampshire, who are represented by
Nashua Printing Pressmen and Assistants' Union No.
359, are entitled to perform all photo-polymer plate-
making at the Employer's Nashua, New Hampshire,
publishing plant.
CHAIRMAN MILLER , dissenting:
On the facts of this case, I cannot agree with my
colleagues' finding that the work in dispute should be
awarded to the employees represented by the Press-
men. The majority's finding is predicated entirely
upon the Employer's subjective preference and ig-
nores the Employer's collective-bargaining agreement
with the Typographers which, in my view, clearly fa-
vors assigning the work to employees represented by
that Union particularly where, as here, all other fac-
tors are equal.
I agree with the majority that most of the factors
traditionally deemed relevant in determining jurisdic-
tional disputes, such as certifications, employer and
area practice, skills of the employees, and economy
and efficiency of operations, in this case favor neither
of the competing claims for the work.' I disagree,
however, that the critical factor of the Employer's
contracts with the competing Unions is also inconclu-
sive and that we must, therefore, rely solely upon the
Employer's subjective preference.
s The majority's finding that the factors of economy and efficiency, and
the possible adverse impact on pressmen jobs favor awarding the work to
employees represented by Pressmen is not fully borne out by the record and
appears to be a makeweight argument . Thus, the Employer testified that even
if the work were assigned to pressmen, it would not necessarily rehire the
pressman who lost his job. Nor does the record show that supervision would
be more difficult or inefficient if the disputed work is done by typographers
The Typographers' contract, as interpreted by arbi-
tration, expressly covers the work of making photo-
polymer plates. This interpretation is, of course, bind-
ing upon the Employer and the Typographers who
submitted the matter to arbitration and participated
in the arbitration proceeding. The arbitrator's ruling
in these circumstances became an integral part of the
collective-bargaining agreement between the parties
and is binding upon them. Neither the Employer nor
the Typographers may now be heard to say that their
contract does not cover the work of photo-polymer
platemaking. In these circumstances, it cannot realis-
tically be found that the Employer's contract with the
Typographers is either silent or ambiguous with re-
spect to its coverage of the work here in dispute.
The Pressmen's contract, on the other hand, covers
"combination press-stereo work" and, as the majority
correctly concedes, does not expressly cover the work
of making photo-polymer plates. Neither the Employ-
er nor the Pressmen contends that the disputed work
constitutes "press-stereo work" within the plain lan-
guage of their contract. Nor is there any arbitral inter-
pretation of this agreement to support any claim that
it should be interpreted in such manner as to cover
this work. The conclusion, then, appears to me ine-
luctable that the Pressmen's contract does not clearly
cover the work in dispute, while the Typographers
contract does.
In view of the foregoing, I would give greater
weight to the parties' collective-bargaining agree-
ments than to the Employer's subjective preference
and, therefore, would award the work to employees
represented by Typographers.'
9 My colleagues mistakenly assert that my reliance upon the arbitrators'
award in determining which group of employees is entitled to the disputed
work is at odds with the Supreme Court's holding in Carey v . Westinghouse
Electric Corporation, 375 U S. 261 (1963), to the effect that the Board has
"superior authority" over an arbitrator in jurisdictional disputes, and that its
rulings take precedence over that of the latter party.
I have no quarrel with the Carey decision . I simply do not believe that it
has any application here . My colleagues have, apparently, missed the point
of my argument I am as willing as my colleagues to invoke the authority of
this Board to decide this jurisdictional dispute, and this dissent makes clear,
I had thought, that I would do so But in deciding the merits of the dispute
in the instant case, the only objective factor present of any significance that
can really be said to favor an award of the disputed work to one group over
another is the collective -bargaining agreement between the Typographers
and the Employer which has been interpreted through arbitration to clearly
cover such work. All other factors, except the Employer's preference as
manifested by its initial assignment of the work, cancel out Hence , I would
merely give greater weight to the collective-bargaining agreement , as it has
been interpreted by a duly qualified arbitrator , than I would to the only
factor relied on by my colleagues -that of employer preference . The Carey
case is simply not even remotely relevant to that issue , which I find control-
ling herein