New York Lithographers & Photo-Engravers

National Labor Relations Board - Board Decisions

Sep 22, 1966

160 N.L.R.B. 1222 (N.L.R.B. 1966)

1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found the Respondent Local 2-P has engaged in unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Although the negotiations between the various locals of the International and
P.D.I. have resulted in agreements which, in effect, have virtually brought the ne-
cessity for secondary activity to an end in that P.D.I. has agreed not to produce
scanned negatives for the gravure industry, an improper object which is not any
longer operative may nevertheless be the basis for a Board Order because such
object may again become operative in the future. Accordingly, I recommend that a
cease-and-desist order in the usual form be issued.
CONCLUSIONS OF LAW
1. Baltimore Lithographers and Photoengravers Union, Local 2-P, International
Lithographers and Photoengravers Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
2. By inducing and encouraging employees of Alco-Gravure Division of Publica-
tion Corporation to engage in a strike or concerted refusal in the course of their
employment to handle or process scanned positives manufactured by P.D.I., an
objective thereof being to force or require Alco to cease doing business with P.D.Y.,
the Respondent, Local 2-P, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(4)(i)(B) of the Act.
3. By the acts described above in paragraph 2, for the objects set forth in said
paragraph, Respondent did threaten, coerce, and restrain and is now threatening,
coercing, and restraining Alco, a person engaged in commerce and in an industry
affecting commerce, and the Respondent thereby has engaged in and is now engaging
in unfair labor practices within the meaning of Section 8(b) (4) (u) (B) of the Act.
4. The aforesaid unfair labor practices, are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
New York Lithographers & Photo -Engravers Union No. One-P,
International Lithographers & Photo-Engravers Union, AFL-
CIO and Alco -Gravure Division of Publication Corporation.
Case 22-CC-.278. September 22, 1966
DECISION AND ORDER
December 13, 196.5, Trial Examiner Morton D. Friedman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support thereof, and the Charg-
ing Party, hereinafter referred to as Alco, filed an answering brief.
The National Labor Relations Board has reviewed the rulings of
160 NLRB No. 91.
NEW YORK LITHOGRAPHERS & PHOTO-ENGRAVERS 1223
the Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board has
considered the Trial Examiner's Decision, the exceptions and briefs,
and the entire record in the case, and hereby adopts the Trial Exam-
iner's findings,' conclusions,' and recommendations.
[The Board adopted the Trial Examiner's Recommended Order.]s
MEMBERS BRowN and JENIKINs, dissenting :
For the reasons set forth in our dissent in the companion case,' we
would find that Local One-P was concerned only with the preserva-
tion of work of employees at Alco's Hoboken plant who are repre-
sented by Local One-P as part of a multiemployer bargaining unit.
Therefore, we would find no violation herein and would dismiss the
complaint in its entirety.
1 The Trial Examiner correctly found that the use of scanned positives purchased from
PDI did not constitute a change in Alco's operations, but reflected only a substitution by
Alco of subcontractors, which did not affect Alco employees in the bargaining unit repre-
sented by Respondent. Therefore, we deem it unnecessary to speculate herein concerning
what type of action by Alco would have justified Respondent's conduct in the absence of
an adverse effect on unit employees
2In concluding that Respondent violated Section 8(b) (4) (1) and (ii) (B) of the Act,
the Trial 'Examiner gave only limited weight (prefacing his statements with "moreover")
to his finding that Respondent's conduct was unlawful also because such conduct was in-
tended to assist union members generally, rather than the employees in the bargaining
unit. While we agree fully with the Trial Examiner's conclusions, we place primary re-
liance on , rather than viewing as merely supportive, the fact that Respondent's activities
were for an object of safeguarding future employment opportunities for union members in
general, rather than employees in the bargaining unit, as more fully set forth in a com-
panion case issued this day. Baltimore Lithographers and Photoengravers Union, Local
No. 2-P, Lithographers and Photoengravers International Union, AFL-CIO (Alen-Gravure,
Division of Publication Corporation), 160 NLRB 1204
8 The address and telephone number for Region 22, appearing at the bottom of the
"Appendix" attached to the Trial Examiner's Decision, is amended to read: 614 National
Newark Building, 744 Broad Street, Newark, New Jersey 07102, Telephone '645-3088.
' Baltimore Lithographers and Photoengravers Union, Local No. 2-P, Lithographers and
Photoengravers International Union, AFL-CIO (Alto-Gravure, Division of Publication
Corporation ), supra.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on May 7, 1965, by Alco-Gravure Division of Publication
Corporation, herein referred to as Alco, the Regional Director for Region 22 of
the National Labor Relations Board, herein called the Board, issued a complaint on
May 20, 1965 , on behalf of the General Counsel of the Board against New York
Lithographers & Photo-Engravers Union Number One-P, International Lithographers
& Photo-Engravers Union (AFL-CIO), herein referred to as the Union or the
Respondent , alleging violations of Section 8(b)(4)(i ) and (ii)(B ) of the National
Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the
Act. In its duly filed answer to the aforementioned complaint , the Union, while
admitting certain of the allegations thereof, denied the commission of any unfair
labor practices.
. Pursuant to notice , a hearing was held before Trial Examiner Morton D. Fried-
man in Newark , New Jersey, on July 12, 1965. All parties were present and
afforded full opportunity to be heard , to introduce relevant evidence, to present
oral argument , and to file briefs . Oral argument was waived . Briefs were filed by
all parties.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon consideration of the entire record in this case, including the briefs of the
parties, and upon my observation of the demeanor of each of the witnesses testi-
fying before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTIONAL FACTS
Alco, a New York corporation, maintains its principal office and plant at Hobo-
ken, New Jersey, and various other plants in the States of Illinois and Maryland
where it is engaged in the printing of rotogravure newspaper supplements, cata-
logues, and related products. Alco's Hoboken plant is the only facility involved in
this proceeding. During the period immediately preceding the issuance of the com-
plaint herein, a representative period, Alco caused to be purchased, transferred, and
delivered to its Hoboken plant, photographic materials, ink, and other goods and
materials of a value in excess of $50,000, of which goods and materials valued in
excess of $50,000 were transported to said Hoboken plant in interstate commerce
directly from States other than the State of New Jersey.
Printing Developments, Inc., herein called P.D.I., a New York corporation, main-
tains its principal office and plant in the city of New York and various other
plants in the States of Connecticut and Illinois where it is engaged in the manu-
facture, sale, and distribution of continuous tone separations and related products.
P.D.I.'s New York plant is the only facility involved in this proceeding. During_ the
12-month period immediately preceding the issuance of the complaint herein, a rep-
resentative period, P.D.I. manufactured, sold, and distributed at its New York plant,
'products valued in excess of $50,000 of which products valued in excess of $50,000
were shipped from said New York plant in interstate commerce directly to points
in States other than the State of New York.
From the foi egoing I conclude that Alco and P.D.I. are employers and persons
engaged in commerce and in businesses affecting commerce within the meaning of
Section 2(6) and (7) of the Act. I further conclude that it will effectuate the pol-
icies of the Act to assert jurisdiction in this proceeding.
II. THE STATUS OF THE RESPONDENT
The Union admits and I find that it is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issue '
The complaint alleges, in legal effect, that the Respondent violated Section
8(b)(4)'(i) and, (ii) (B) of the Act by inducing and encouraging Alco's employees
to strike and refuse to handle scanned positives purchased by Alco from P.D.I. with
an object of forcing or requiring Alco to cease' doing business with P.D I. The
answer admits the encouragement and inducement and the refusal to handle or
process P.D.I. scanned positives and, alleges affirmativeiy that the action taken by
the Union's members was for the purpose of enforcing contractual obligations of
Alco and was therefore primary and not for the purpose of forcing or requiring
Alco to cease doing business with P.D.I.
Accordingly, the primary issue presented, is whether the refusal by the Union's
members, who are employees of Al'co, to process` in, Alco's shop scanned' positives
purchased by Alco from P.D.I. constitutes lawful primary, activity or proscribed
secondary activity:
B. Background
The gravure printing process, as employed by Alco, is performed completely, up
to the actual printing on the press, by members of the Respondent Union who are
photo-engravers. The preparation of cylinders for the printing of colored gravure
products begins normally with copy supplied by an advertiser or by the particular
newspaper whose work is being done, by Alco. This copy normally consists of a
colored transparency. From this colored transparency a negative is made in the
gallery department of Alco's shop. These negatives are then corrected for color
and defects and from them are made positives which are themselves on film and
are transparent. These positives are also made by photographers, from the negatives,
in the gallery section of the Alco plant . Once the positive is made, additional cor-
NEW YORK LITHOGRAPHERS & PHOTO-ENGRAVERS 1225
rections must be made on the positive. These corrections are also made, as are all
other steps, by photo-engravers. When the final correction is made on a positive,
it is then placed in the register . A positive actually consists of four individual
sheets of film which represent the four basic colors, red, yellow, blue, and black.
It is necessary to lay these colors in exact dimension and then they are registered.
When this is accomplished the positives are processed in the Alco process depart-
ment where they are exposed to ultraviolet light on additional film and a screen is
added. This film is called the rotofilm which is then processed through the devel-
oper, a specialized piece of equipment. From this point forward the rotofilm is
sent to the etching department where it is placed upon a metal cylinder in a pre-
scribed manner. The cylinder after being etched is then washed off, run through the
proof press, and brought back for further corrections. The cylinder after it is corrected
is then chromed and is ready for the press room. Again, all of these foregoing
operations, with the exception of the proof press running, are performed by photo-
engraver members of the Respondent Union.
In its own shop Alco is unable to manufacture all of the negatives and positives
that are required for its completed work. Statistically, in any given period, Alco
purchases from outside sources approximately 30 percent of the required number
of positives. This purchasing of positives from outside sources has been a practice
on the part of Alco for approximately the past 20 years. When the positives come
to Alco from these outside sources they are the same as positives produced by
Alco's own employees and are then processed, as set forth above, in the same
manner as positives manufactured by Alco.
P.D.I. is a manufacturer of positives and negatives by a process known as scan-
ning. The positives made by Alco and all other suppliers, aside from P.D.I., are
made by camera method and are hand -processed. The positives supplied by P.D.I.
are made on an electronic scanning machine which, although operated by a mem-
ber of the Respondent Union, which has had during the critical period herein con-
tracts with P.D.I., does eliminate the camera work and thereby some of the steps
in the making of a positive in the traditional manner. This, of course, eliminates
the work of a number of the employees who would be used were the positives to
be made in the traditional camera method. -
Although Alco has been -,purchasing positives from outside suppliers for a period
of approximately 20 years, it has been dealing with 'P.D.I. for only the ,past 4 or 5
years and until the first of this year has purchased only scanned negatives from
P.D I. Thus it was only during the year preceding the hearing herein that Alco
began purchasing scanned positives from P.D.I. On August 1, 1964, Alco and P.D.I.
entered into an agreement, effective that date, pursuant to which Alco agreed to
purchase 750 scanned units during the 12-month period thereafter from P.D.I. for
Alco's various plants and from P:D:I.'s various plants. As a result of this contract,
about 5 percent of the business done by Alco with P.D.I. is .the supplying by
P:D.I.to Alco of scanned positives. The other 95 percent of the business is in
scanned negatives which are not the subject of dispute in this proceeding. Addition-
ally, in the present state .of .development of .the scanning process, scanned positives
lend themselves to only 5 or 8 percent of Alco's work which, at the present time,
results in the purchase of scanned positives from P.D.I. in a minimal quantity.
However, it should also be noted, that there is a 30 to 50 percent savings in the
cost of scanned positives under the cost of traditionally processed positives and,
moreover, the time consumed in making a scanned positive is considerably less than
that consumed in producing positives by the hand camera method. Accordingly,
when Alco needs a positive in a minimum of time it can have the positive made by
P.D.I., provided the P.D.I. positive is useful in the particular job involved, in a
much shorter time than if Alco contracted the work out to one of the camera
shops or had the positive made in its own shop. However, Alco 'has thus far not
used P.D.I. positives except to satisfy overflow needs that cannot be filled by its
own employees.'
C. The events
As set forth above, Alco employs proto-engravers who are members of the Union
and perform the various steps necessary to the final fabrication of the chromed
copper 'cylinders for the printing of color gravure material. Among the steps nec-
' From uncontroverted and credited portions of the testimony of 'Chas les Cullinane and
William Munz. Compare these facts to those in the case of Baltimore Local 2-P etc.
issued simultaneously herewith as Cases 5-CC-303 and 306.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
essary to this process is the making of positives. About July 1964,one of the photo-
engravers employed by Alco reported to then chapel chairman (shop steward)
Andrew Anderson that a scanned positive was being used for production purposes 2
and the employee complained to Anderson that he thought the use of the scanned
positive was a breach of the clause of the Union's agreement with the Trade Asso-
ciation of which Alco is a member, which, in effect, required consent of the Union
to the use of new methods, processes, or machinery.3 Anderson then spoke to
William Munz, Alco's processing supervisor, about the matter and told Munz that
he considered the use of the scanned positive from P.D.I. a breach of the aforesaid
collective-bargaining agreement .4 Munz replied that Alco had a right under the
agreement to purchase positives and that the positive about which the man com-
plained was a purchased positive. The discussion ended with Anderson stating that
he would make contact with McGowan, the Respondent's president. Anderson then
called McGowan who told Anderson that he wanted to consult the International
before making any decision on the matter, because the International might be con-
fronted with scanned positives in other shops across the country. After that Alco
ran through several more sets of scanned positives, approximately one per week.5
In the latter part of October 1964, McGowan informed Anderson that the
employees of Alco could no longer handle or process scanned positives. Anderson
so informed the men.6 On the morning of October 28, one of the employees was
assigned to work on a set of scanned positives. His duty was to retouch the color
process on the positive. The man to whom the work was assigned informed Ander-
son, who then spoke to Munz and informed the latter that the men would no longer
handle scanned positives supplied by P.D.I. Anderson gave him as a reason that the
use of scanned positives was a new method. This, of course, was the same reason
that Anderson advanced in his first conversation with Munz with regard to the
scanned positives. A discussion ensued, the upshot of which, after Anderson was
unable to make contact with McGowan, was that the photo-engravers in the shop
would continue to process scanned positives until disposition was made of the issue
with McGowan. Anderson made it plain to Munz that the purpose of this refusal
to handle scanned positives was for job security.
On that same day, Munz wrote to McGowan and asked the latter for a meeting
on November 2, 1965. He heard nothing until November 3 when he spoke to
McGowan on the telephone. Munz then asked McGowan why the Union objected
to P.D.I. positives and McGowan informed Munz that "this was a matter of nego-
tiation between P.D.I. and the International Union."
McGowan asked that the meeting date be delayed. Munz agreed and asked that
McGowan confirm the conversation and the meeting date in writing. Thereafter,
on November 9, 1964, McGowan forwarded a letter to Munz the pertinent part
,of which stated: " . . it is a matter with the latter firm [referring to P.D.I.] that
I believe will be resolved in their contract."
Finally on December 30, 1964, the meeting was held and the matter was dis-
cussed. No agreement was reached. McGowan again mentioned the fact that this
entire matter was the subject of negotiations between P.D.I. and the International
and that he would like to have time to take the matter up with the International
'Earlier, in about June 1964, Alco had used some scanned positives for experimental
purposes
81964-65 agreement between the Union and Employing Gravure Printers of New York
City and vicinity, article 8, sec. 9 which reads :
The employer agrees that prior to the operation of any new method, process or
machinery not now utilized in the employer's plant, mutual accord shall be reached
between the employer and the Union in regard to the operation and or application
of such new method, process or machinery.
If no accord is leached it will be submitted to the Joint Industrial Counsel for
decision.
4 This agreement also contains a provision, article II, sec. 4, which provides in pertinent
part :
Any material entering the gravure photo-engraving department to he reproduced
shall serve as copy for the initial photographic process and shall be processed and
completed under the terms of this contract. It is not intended under this agreement
to change present practices. (Emphasis supplied.)
8 From the uncontroverted testimony of Anderson which I credit. Although Munz was
called on rebuttal, he neither denied nor confirmed Anderson's testimony.
6 From credited testimony of Anderson.
NEW YORK LITHOGRAPHERS "& PHOTO-ENGRAVERS 1227
.and consult the Local's lawyer.? At this meeting also , McGowan, on behalf of the
Union, offered to handle scanned positives as original copy. This, of course, was
rejected by Alco's representatives.
Between the December 30 meeting and March 17, 1965, the Union continued to
permit its members who were employed by Alco to process scanned positives com-
ing from P.D.I. On March 17, 1965, McGowan forwarded a notice to the members
of the Respondent Union, which notice was posted in Alco's shop, which directed
the men to use P.D.I. positives only as copy. Munz, as a result of this notice, had
a conversation with L'Hertier, the new chapel chairman. At this meeting, which
occurred on April 7, 1965, L'Hertier told Munz that the, men refused to process
scanned positives from P.D.I. Munz explained that processing a scanned positive
from P.D.I. was the same as processing a positive purchased from any of Alco's
other suppliers. Finally, L'Hertier agreed to process the set in question. The next
morning Munz asked L'Hertier to give him a letter stating the reasons for refusing
to handle scanned P.D.I. positives. The following day, as promised, L'Hertier sup-
plied Munz with a letter to the effect that the men in the shop had received a letter
from McGowan stating that scanned positives were to be used only as original
copy and not production sets.
On April 20, Munz caused to be assigned to the employees for processing two
sets of P.D.I. scanned positives for correction work. L'Hertier again stated that
the men would not work on these positives and on the same day supplied Munz
with a letter which reaffirmed L'Hertier's letter of April 8 concerning the Interna-
tional's order that scanned positives were to be used only as copy. L'Hertier also
stated that he thought ample time had been given to Alco so that these jobs could
have been stopped and another method used until the problem was settled by the
International and the Local.
As a result of the foregoing, on May 4, 1965, another and final meeting was
held between Alco's representatives and the Respondent's officials. Present for the
Company were Munz, Cullinane, and another and for the Union were Anderson,
L'Hertier, and McGowan. The entire problem was rehashed. McGowan was ada-
mant and again repeated that "that there was the matter of negotiations with
P.D.I. which he felt would straighten out the whole business."
Cullinane warned McGowan that if the Union persisted on this course, the
Company would have no alternative but to take legal action. McGowan answered
"if you take any legal steps in this matter, I will pull every engraver out of
P.D.I. and then you will get neither negatives nor positives."
The meeting was then concluded. Thereafter Alco filed the charge upon which
the complaint in this proceeding is based .8
While the foregoing events were taking place, the Union was also actively in
contact with P.D I. The employees of P.D.I. who participated in the making of the
scanned negatives and scanned positives are also members of the Union. P.D.I.
has had a contract with the Union with regard to these employees for a number of
years. The most recently expired agreement was the 1964-65 agreement between
P.D.I. and the Union. This was a 1 year agreement expiring April 30, 1965, but
the agreement was not signed until sometime in December 1964. Thus, during the
period from October 28, 1964, when the photo-engraving employees of Alco
first refused to work on scanned positives from P.D.I., the Union was actively
engaged in negotiating a contract with P.D.I. and seeking to enforce its contract
demands upon P.D.I. Finally, after the contract was signed around the end of
December 1964, the meeting between Munz and McGowan relating to Alco's prob-
lem took place and although no final disposition was made as a result of that
meeting, nevertheless the Union did agree to permit Alco to process P.D.I. nega-
tives after P.D.I. had signed an agreement with the Union. Also, with regard to
the signing of that contract, McGowan, at that December 30 meeting, related that
the result depended on the status of P.D.I. with the International Union.
7 From the credited, uncontroverted testimony of William Munz. Although Anderson
testified as to this meeting, the only matter that Anderson added to his testimony was
that the Union offered to handle the scanned positives as copy to protect job security.
6 From the credited testimony of Munz and Cullinane. Anderson's version of what
occurred at these meetings and the sequence of events set forth above did not contro-
vert in any way the foregoing testimony of Munz and Cullinane except to the extent that
Anderson insisted that McGowan did not threaten to pull the photo-engravers out of
P D.I but rather threatened that if Alco took legal action McGowan would pull the union
.label from P.D I. and not the union men.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From that point until some time , in April, as noted above, Alco 'was permitted
to process P.D.I. scanned positives.
As noted above, the 1964-65 collective-bargaining agreement between P.D.I. and
the Union expired on April 30, 1965. Sometime around April 22 or 23, 1965, P.D.I.
received demands from the Union for a new contract. Among these demands was
one to the effect that P.D.I. cease producing scanned positives. As stated above, it
was during this same period of time, approximately on April 20, 1965, that the
Respondent's employees , who were members of the Union, refused to process any
more scanned positives from P.D.I. Negotiations for the new agreement between
P.D.I. and the Union continued down through the period after the charge in this
case was filed and contract settlement was finally reached approximately 2 weeks
before the hearing herein, although a new agreement had not yet been signed as of
the date of the hearing. One of the items of settlement to which P.D.I. finally
agreed was that P.D.I. would be allowed to continue to produce scanned positives
for other segments of the printing industries, but could not produce scanned
positives for the gravure industry, in which Alco is engaged, without the specific
consent and permission of the Union.9
D. Concluding findings
There is no real dispute as to the facts herein. Consequently, the issue, as noted
above, is basically a legal one, whether the refusal of the Union's members to
handle scanned positives, on instruction from the Union, was primary or secondary
activity. The 'General Counsel and the Charging Party contend that it is clear that
from the inception of the work stoppages in Alco's plant, the issue concerning the
use of P.D.I. scanned positives by Alco was always dependent upon the pending of
various negotiations between Respondent Union and P.D.I.; that, therefore, it is
clear that the object of the refusal to handle the P.D.I. positives was to force or
require Alco to cease doing business with P.D.I. to force P.D.I. to capitulate to the
Union and -that such conduct is proscribed by Section 8(b)(4)(i)(B) of the Act.
While acknowledging that the root of all the trouble was the fear of the Union
and its members that •Alco and other gravure shops would gradually increase their
use of scanned positives from P.D.I. at the expense of photo-engraver members of
the Union, the General Counsel and the Charging Party contend that the basic
dispute was with P.D.I., the developer of the scanning process and producer of the
scanned positives. They argue that when the Union instructed its members not to
process these positives at Alco's shop it had the effect of cutting off a source of
supply of Alco, which was merely purchasing a product and not in any way chang-
ing its methods of operation inasmuch as Alco had for many years purchased
approximately 30 percent of its positives from outside sources. Furthermore, this
practice was one which the Union had not only consented to but also safeguarded
in its collective-bargaining agreement with Alco.
The Union, on the other hand, contends that the dispute with Alco is primary
in nature and that the Union looked to Alco for settlement of the dispute. In sup-
port of its position, the Union points out that the first complaint of the use of
scanned positives came in July or August of 1964 when a journeyman complained
to the chapel chairman about the first use by Alco of a scanned positive for pro-
duction purposes. The Union argues further that there was and is a general fear
that the continued use of scanned positives will, result in a diminution of unit work
and that Alco, after all, is not bound in any manner to purchase scanned positives
from P.D.I. and that, therefore, Alco has control over the subject manner of the
dispute, a fact which in and of itself makes the dispute primary. Moreover, the
Union contends, the fact that no employee of Alco has, as yet, suffered a loss
of work does not preclude the Union from preventing the loss of such work in the
future. Such work, according to the Union, is work actually being performed by
photo-engravers employed by Alco. Furthermore, according to the Union, although
P.D.I.'s employees who are members of the Union have been producing for P.D.I.
scanned positives for the past 5 years, no dispute with P.D.I. arose therefrom until
Alco commenced to use P.D.I. scanned positives for production. Therefore, the
Union claims, it is Alco's use of the PD.I's positives which is the subject of the
dispute and not P.D.I.'s production of the same.
The positions taken by, the parties and the facts set forth above make it appar-
ent in this proceeding, as in many other cases of like nature, that the distinction
6 From the testimony of Robert Edmonson, business manager of P.D.I , which testimony
was uncontroverted and which I credit.
NEW YORK LITHOGRAPHERS & PHOTO=ENGRAVERS 1229
between primary and secondary activity does not present a glaringly bright line.10
Thus, on the one hand, the record would seem to present a classical case of sec-
ondary boycott. It is uncontradicted that since April 20, 1965, the photo-engraver
members of the Union who are employed by Alco, upon.specific instructions from
the Union's president and chapel chairman, have refused to handle scanned posi-
tives purchased by Alco from P.D.I. Moreover, it is also apparent that during the
time of the various refusals by Alco's employees to process scanned P.D.I. positives,
and especially at approximately the time of the April 30, 1965, refusal, the Union
was in active negotiation with P.D.I. and demanding, as one of its prime targets,
that P.D.I. discontinue the production of scanned positives. This would seem to
place squarely in the hands of P.D.I. the locus of the primary dispute. And this
conclusion can be supported and strengthened by the declaration of the Union's
president, McGowan, in his several discussions with, and letters to, Alco's officials
to the effect that the issue raised by the refusals of Alco's employees to process
P.D.I.'s scanned positives would be settled in the negotiations with P.D.I. and
resolved in any contract reached with the latter firm. It can readily be concluded,
therefore, that an object of the Union's instructions to its members who were
employees of Alco was to force Alco to partially cease doing business with P.D.I.
for the purpose of bringing sufficient pressure on P.D.I. to force the latter to accede
to the Union's demands that P.D.I. discontinue production of scanned positives
for the gravure industry. Such activity, with such an object, is clearly, by defini-
tion, secondary in nature and violative of, the Act. And this is so even though less
than total cessation of the business relationship between Alco and P.D I. was the
object of the Respondent's activity as such partial cessation as object falls within
the intended meaning of "cease doing business." 11
On the other hand, there is no question, and it is conceded, that the reason the
Union embarked upon the course it took was the fear of the union members and
officials that the use of scanned positives would have a detrimental effect on the
employees of Alco and other gravure shops. This is illustrated and punctuated by
the fact that the first complaint by the use of the P.D.I. scanned positives came
not from union officials but from a rank-and-file employee of Alco in July or
August 1964. Thus, it can be argued that a dispute between Alco and its employee
members of the Union began at that time and remained a basic dispute, throughout
the period of the employees' refusal to handle P.D.I. positives. Additionally, Alco,
to an extent at least, has control over the subject matter of the dispute. Thus,
Alco has it completely within its discretion to decide whether to purchase scanned
positives from P.D.I. or traditionally processed positives from other suppliers.
Thus, it would seem , on the surface at least, that control being in Alco, the dispute
was primary since the activity of the Union was for the preservation of union
work.la
However, that a dispute existed with P.D.I. during the times of the refusals to
handle is apparent from the facts. While it is true that the Union did not strike
P.D.I. or cause any work stoppages at the P.D.T. plant, and while it is' also true
that the concern of the Union was loss of work at Alco and other gravure plants,
nevertheless, it is clear from the Union's demand that P.D.I. stop making scanned
positives and from McGowan's repeated' statements that the negotiations with P.D.I.
would settle the matter, that a dispute existed with P.D.I. A dispute between the
Union and its primary employer target need not be an active one in considering
the existence of an 8(b)(4) violation.13 The fact that no strikes, picket lines, or
refusals to handle took place at P.D. L is not a controlling factor.
Nor does the Union' s argument that Alco had in its power' to end the work
stoppages by ceasing to purchase scanned positives front P.D.I. have merit in view
10 Local 761, International Union o f Electrical, Radio and Machine Workers, AFL-CIO v.
N L.R.73., 366 U.S 667, 673.
11 See, e.g., Local 3, International Brotherhood of Electrical Workers, AFL-CIO (New
York Telephone Company), 140 NLRB 729, 730, enfd 326 F 2d 561 (C A 2) ; New York
Mailers' Union No. 6, International Typographical Union, AFL-CIO (New York Herald
Tribune), 136 NLRB 196; N.L.R.B. v Milk Wagon Drivers' Union Local 758, Teamsters
(Pure Milk Association), 335 F.2d 326, 328 (C A. 7).
See Metropolitan District Council of Philadelphia ( National Woodwork Maaufacturers
Association), 149 NLRB 646; International Association of Heat and Frost Insulators and
Asbestos Workers, No. 53 ( Reilly-Benton Company, Inc.), 149 NLRB 1075.
13 Local 11, Carpenters (General Millwork Corporation), 113 NLRB 1084, 1086, enfd.
242 F.2d 932, 934-935 (C.A. 6) ; Washington- Oregon Shingle Weavers' District Council
(Sound Shingle Co.), 101 NLRB 1159, 1161, enfd. 211 F.2d 149 (C.A. 9).
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of all of the facts. It is true that Alco was under no contractual obligation to pur-
chase P.D.I.'s scanned positives. It is also true that it freely exercised complete-
discretion in its purchases of positives. But, there is no record support that Alcoa
had in any manner changed its method of operation or that unit jobs were actually
affected by the purchases of P.D.I. scanned positives. Alco had always purchased'
about 30 percent of its positives. There was no change from this practice. Thus,
even conceding that the Union thought that Alco had changed its practices and
had subcontracted in violation of the contract between the Union and Alco, no,
union jobs have been affected, no loss of work shown by the Union. While it is
true that in a proper case a union, fearful of loss of work for its members, does not
have to wait for actual loss of work before seeking redress by refusing to handle,14
nevertheless some overt act indicating a change in the employer's operations would
have to be shown to justify as primary activity what would otherwise be proscribe&
secondary activity.15 In the instant case there has been no change in operations.
Alco merely continued to purchase positives from a supplier as it had done in the-
past.
Moreover, in a recent case, Teamsters, Chauffeurs, Warehousemen & Helpers
Local Union No. 631, Teamsters, (Reynolds Electric and Engineering Co.), 154
NLRB 67, the Board held that actions taken by a union to safeguard work oppor-
tunities in other units it represents as well as the unit represented at the primary
employers plant has the objective of protecting the work of its members generally.
Such objective is secondary and therefor unlawful.16 The agreement ultimately
reached between the Union and P.D.I. effectively proscribing the production of
scanned positives for the gravure industry indicates clearly that the Union was not
only concerned with the use of P.D.I. scanned positives in Alco's shop but in other
shops in the gravure industry within the Union's geographical jurisdiction. Therefore,
the claim by the Union that it was looking toward Alco for settlement of the dis-
pute is without merit because the Union's ultimate goal was to protect work in all
the units it represents in the gravure industry. This constitutes a proscribed object.
Accordingly, I find that the Union has violated Section 8(b) (4) (i) (B) of the
Act by inducing and encouraging employees of Alco to engage in a strike and
refusal to handle scanned positives purchased by Alco from P.D.I. with an object
of forcing or requiring Alco to cease doing business with P.D.I. I find, additionally,
that the Union with like object, threatened, coerced, and restrained and is threat-
ening , coercing, and restraining Alco which is engaged in commerce and in an-
industry affecting commerce and that the Union thereby did engage in and is
engaging in unfair labor practices within the meaning of Section 8(b) (4) (ii) (B)
of the Act.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Although the negotiations between the Union and P.D.I. have resulted in an:
agreement which, in affect, has virtually brought the necessity for secondary activ-
14 United Dairy Workers, Local No 83, Retail, Wholesale Union (Archer Elias), 146
NLRB 716, 722 ; Milk Wagon Drivers and Dairy Employees Union Local 603, Teamsters
(Drive-Thru Dairy, Inc.), 145 NLRB 445.
15 Compare with the cases cited in footnote 14, supra, where in each case, although at
the time of the allegedly unlawful activity, no employee's job had been affected as yet,
nevertheless, the employer In each case had made a change in his operations. Thus, in the
Elias case the employer had permitted sales from the dock for the first time and in
Drive-Thru case, dockside sales were instituted to a customer within the union's geo-
graphical jurisdiction for the first time. In the instant case, no change of operation has
occurred.
16 See Milk Drivers and Dairy Employees Local Union No 584 Teamsters (Old Dutch
Farms,'Inc.), 146 NLRB :509 ; Local 5, United Association of Journeymen (Arthur Venneri
Company), 137 NLRB 828.
NEW YORK LITHOGRAPHERS & PHOTO-ENGRAVERS 1231
ity to an end in that P.D.I. has agreed not to produce scanned positives for the
gravure industry, an improper object which is not any longer operative may never-
theless be the basis for a Board order because such object may again become oper-
ative in the future. Accordingly, I recommend that a cease-and-desist order in the
usual form be issued.
CONCLUSIONS OF LAW
1. New York Lithographers & Photo-Engravers Union No. One-P , International
Lithographers & Photo-Engravers Union (AFL-CIO) is a labor organization within
the meaning of Section 2(5) of the Act.
2. By inducing and encouraging employees of Alco-Gravure Division of Publica-
tion Corporation to engage in a strike or concerted refusal in the course of their
employment to handle or process scanned positives manufactured by P.D.I., an
object thereof being to force and require Alco to cease doing business with P.D.I.,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (b)(4)(i)(B ) of the Act.
3. By the acts described above in paragraph 2 for the objects set forth above in
said paragraph , Respondent did threaten , coerce, and restrain , and is now threatening,
coercing, and restraining Alco, a person engaged in commerce and in an industry
affecting commerce and the Respondent thereby has engaged in and is now engaging
in unfair labor practices within the meaning of Section 8 (b)(4)(ii )(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , it is ordered that the Respondent , New York
Lithographers & Photo-Engravers Union No. One-P, International Lithographers &
Photo-Engravers Union (AFL-CIO), its officers , agents, and representatives , shall:
1. Cease and desist from engaging or inducing or encouraging any individual
employed by Alco-Gravure Division of Publication Corporation to engage in a
strike or a refusal in the course of his employment to use, process , transport, or
otherwise handle or work on any goods , articles, materials or commodities , or per-
form any services ; or to threaten , coerce, or restrain Alco-Gravure Division of
Publication Corporation when , in either case, an object thereof is forcing or requir-
ing Alco-Gravure Division of Publication Corporation to cease doing business with
Printing Developments, Inc.
2. Take the following action which I find will effectuate the policies of the Act:
(a) Post in conspicuous places at its office and meeting hall and at the Hoboken,
New Jersey , plant of Alco-Gravure Division of Publication Corporation and at all
places where Respondent customarily posts its notices, copies of the attached notice
marked "Appendix." 17 Copies of said notice to be furnished by the Regional Direc-
tor for Region 22, after being duly signed by Respondent 's representative , shall be
posted by Respondent immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter . Reasonable steps shall be taken to insure that
such notices are not altered , defaced, or covered by any other material.
(b) Notify the Regional Director for Region 22, in writing , within 20 days from
the date of the service of this Decision , what steps have been taken to comply
herewith.18
IT IS FURTHER RECOMMENDED that unless on or before 20 days from the date of
this Decision and Recommended Order the Respondent has notified the said
Regional Director , in writing , that it will comply with the foregoing Recommended
Order, the National Labor Relations Board issue an Order requiring the action
aforesaid.,
is In the event that this Recommended Order is adopted by the Board the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
is In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL OFFICERS AND MEMBERS OF NEW YORK LITHOGRAPHERS & PHOTO-
ENGRAVERS . UNION No. ONE-P, INTERNATIONAL LITHOGRAPHERS & PHOTO
ENGRAVERS UNION (AFL-CIO)
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT engage in , or induce or encourage any individual employed by
Aico-Gravure Division of Publication Corporation to engage in a strike or
refusal in the course of his employment to use, process, transport, or other=
wise handle or work on any goods, articles or commodities or to perform any
services, or threaten, coerce, or restrain Alco-Gravure Division of Publication
Corporation, with an object of forcing and requiring Alco-Gravure Division of
Publication Corporation to cease doing business with Printing Development,
Inc.
NEW YORK LITHOGRAPHERS & PHOTO-ENGRAVERS UNION
No. ONE-P, INTERNATIONAL LITHOGRAPHERS & PHOTO-
ENGRAVERS UNION (AFL-CIO),
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members and officers have any question concerning this notice or compliance
with its provisions, they may communicate directly with Board's Regional Office,
641 National Newark Building, 744 Broad Street, Newark, New Jersey 77002,
Telephone 228-4722.
International Union of Operating Engineers , AFL-CIO, Local
Union No. 3 (American Pipe and Construction Co.) and Inter-
national Association of Machinists and Aerospace Workers,
AFL-CIO, Local Lodge No. 1546. Case 20-CD-189. Septem-
ber 23, 1966
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by International
Association of Machinists and Aerospace Workers, AFL-CIO, Local
Lodge No. 1546, hereinafter called the IAM or the Machinists,
against International Union of Operating Engineers, AFL-CIO,
Local Union No. 3, hereinafter called the Operating Engineers. The
charge alleged that the Operating Engineers had threatened a strike
and had caused a work stoppage with an object of forcing or requir-
ing American Pipe and Construction Co., hereinafter called the
Employer, to assign certain work to its members rather than to mem-
bers of the IAM. A hearing was held at San Francisco, California,
on May 23 and 24, 1966, before Hearing Officer Robert B. Hoffman.
All parties participated in the hearing and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
160 NLRB No. 96.