New York Typographical Union No. 6

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 553 (N.L.R.B. 1980)

NEW YORK TYPOGRAPHICAL UNION NO. 6
New York Typographical Union No. 6, International
Typographical Union, AFL-CIO and New York
News, Inc. and Local Union No. 3, Internation-
al Brotherhood of Electrical Workers, AFL-
CIO. Case 2-CD-612
September 30, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELI1O
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by New York News, Inc., herein
called the Employer, alleging that New York Ty-
pographical Union No. 6, International Typo-
graphical Union, AFL-CIO, herein called Typo-
graphical Union, violated Section 8(b)(4)(D) of the
Act by engaging in certain proscribed activity with
an object of forcing or requiring the Employer to
assign certain work to its members rather than to
employees represented by Local Union No. 3, In-
ternational Brotherhood of Electrical Workers,
AFL-CIO, herein called Local 3.
Pursuant to notice, a hearing was held before
Hearing Officer Paul Rickard on July I and 15,
1980. All parties appeared' and were afforded full
opportunity to be heard, to examine and cross-ex-
amine witnesses, and to adduce evidence bearing
on the issues.
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 Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPI.OYER
The record shows that the Employer, a New
York corporation with its principal place of busi-
ness in New York City, is engaged in the publica-
tion of the New York News, a daily and Sunday
newspaper of general circulation.
During the past year, in the course and conduct
of its business operations, the Employer derived
gross revenues in excess of $200,000 and purchased
I Counsel for Local 3 appeared "specially" where he argued the
"threshold question" of hether or not the Board has jurisdiction in the
dispute, stated that he was not appearing "with respect to the merits of
who is entitled to perform the work," submitted a decision rendered by
an impartial umpire under the AFL-CIO Internal Disputes Plan favoring
Local 3, and then left the hearing
252 NLRB No. 90
goods and supplies valued in excess of $50,000 di-
rectly from sources outside the State of New York.
Accordingly, we find that the Employer is engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act and that it will effectuate the
purposes of the Act to assert jurisdiction herein. 2
II. THE I.ABOR ORGANIZATIONS INVOLVED
The record shows that New York Typographical
Union No. 6, International Typographical Union,
AFL-CIO, and Local Union No. 3, International
Brotherhood of Electrical Workers, AFL-CIO,
exist for the purpose of dealing with various em-
ployers with respect to wages, hours, and other
terms and conditions of employment. We find,
therefore, that New York Typographical Union
No. 6, International Typographical Union, AFL-
CIO, and Local Union No. 3, International Broth-
erhood of Electrical Workers, AFL-CIO, are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
In 1956 the Employer began to automate certain
facets of its printing process and to introduce
modern technology into the composing room func-
tions. The Electronic Publishing System was com-
pleted in January 1979, and its maintenance and
service was assigned to members of the Typo-
graphical Union.
On November 2, 1979, Local 3 protested this as-
signment to the Employer, and, on December 12,
1979, requested arbitration of the jurisdiction of the
work. On January 10, 1980, the Typographical
Union informed the Employer that it would take
whatever action proved necessary to protect its job
jurisdiction. On January 14, 1980, the Employer in-
formed the Typographical Union of Local 3's arbi-
tration request, and invited it to participate. On
January 18, 1980, Bertram Powers, president of
Typographical Union Local 6, informed the Em-
ployer by letter that Local 6 would not participate
in any arbitration, and threatened to take strike
action to protect its work jurisdiction.
The Employer thereafter filed the charge in this
proceeding.
B. The Work in Dispute
The work in dispute involves the service, main-
tenance, and repair of the equipment comprising
the Electronic Publishing System, located in the
2 N i rA .\Yo r spape r Printing Premani Union .No 2 .\ew };'or
.Yn . tlm.), 249 NI.RH I284 I( l98ti
553
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sixth floor composing room and the seventh floor
editorial department of the Employer's facility lo-
cated at 220 East 42d Street, New York, New
York.
C. The Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that the Typographical Union vio-
lated Section 8(b)(4)(D) of the Act, and that the
dispute is properly before the Board, and further
contends that the work in dispute should be award-
ed to employees represented by the Typographical
Union who presently are assigned to perform the
disputed work based on their skills and training,
the Typographical Union's contractual jurisdiction,
economy and efficiency of operations, job impact,
and the Employer's preference and assignment.
The position of the Typograhical Union is basically
consistent with that taken by the Employer.
The position of Local 3 is that the Board does
not have jurisdiction of this matter because (1) no
genuine 8(b)(4)(D)(ii) threat occurred, and (2) the
parties have agreed upon other methods for a vol-
untary adjustment.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated and that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
It is clear that the Typographical Union threat-
ened economic action, both orally and by letter, in-
cluding a strike, to protect its claim to the mainte-
nance, service, and repair of the Electronic Pub-
lishing System, and refused to participate in the ar-
bitration of the dispute. There is no evidence in the
record to support Local 3's assertion that this
threat was anything but genuine. Under settled
Board policy, reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred exists
even if a labor organization which represents em-
ployees who are assigned the disputed work puts
improper pressure upon an employer to continue
such assignment.3
At the hearing, Local 3 sought to introduce a
decision of an AFL-CIO umpire dated June 26,
1980, rendered under the AFL-CIO Internal Dis-
putes Plan to which both Unions are bound and in
which he determined that the acts of the Interna-
tional Typographical Union with respect to the
"electrical maintenance, installation, and repair
: Sreoryperv and Elctrotypers LUnion,. Denver Local 13 (The Den ,rr
Posti, 246 NI.RB N o 117 (1979)
work on the Mergenthaler electronic equipment at
the New York News" constitute violations of arti-
cle 20 (new AFL-CIO constitution), section 3. The
document was rejected at the hearing because it
was not properly authenticated. Local 3, in its
brief, urges that the Board take judicial notice of
the document's authenticity. We find it unnecessary
to rule upon this request since there is no evidence
that the Employer agreed to submit disputes to the
Internal Disputes Plan, and neither the Employer
nor Typographical Union Local 6 participated in
that proceeding. Additionally, the impartial um-
pire's award was not decided on the criteria on
which we rely in 10(k) proceedings. International
Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and
Canada (Metromedia, Inc.), 225 NLRB 785, 788
(1976).
Based on the foregoing, and the record as a
whole, we find that the parties have not agreed
upon a method for the voluntary adjustment of the
dispute and that there is reasonable cause to believe
that an object of the action of the Typographical
Union was to force the Employer to continue to
assign the disputed work to employees represented
by the Typographical Union, and that a violation
of Section 8(b)(4)(D) has occurred.
Accordingly, we find that the dispute is properly
before the Board for determination under Section
10(k) of the Act and, therefore, we hereby deny
Local 3's motion to dismiss the instant proceeding.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work
after giving due consideration to relevant factors. 4
The Board has held that its determination in a ju-
risdictional dispute is an act of judgment based on
commonsense and experience reached by balancing
those factors involved in a particular case. 5
The following factors are relevant in making the
determination of the dispute before us:
1. Skills and training
The record reveals that the employees represent-
ed by theTypographical Union have performed this
work since January 1979. Since 1954 they have
been doing composing room functions, and have
been doing electronic maintenance work, including
photocomposition and producing newspapers by
photographic and electronic methods since 1956.
4 N.L.R.B. v. Radio & lileion Broadcast Engineers Union, Local
1212, International Brotherhood o Electrical orkers, AFL-CIO Colum-
hia roadcaiing System), 364 U S. 573 (1961)
Intelrntionioal Association of Machi,is. L.odge No. 1743. AFL-CIO i.
A. Jlone (Contiruction (Companv)i. 135 NLRB 1402 (19t2).
554
NEW YORK TYI'OGRAPIllCAL UNION NO. 6
They have been trained both within and without
the Employer's facility in the operation of the
Electronic Publishing System, and have undergone
special training in maintenance and servicing of the
system. Local 3 contends that the employees it rep-
resents possess the requisite skills necessary to per-
form the work involved, but presented no evidence
in support of its claim. We find that the factor of
skill favors an award of the work in dispute to em-
ployees represented by the Typographical Union.
2. Collective-bargaining agreements
Neither of the Unions involved herein has been
certified by the Board as the collective-bargaining
representative for a unit of the Employer's employ-
ees. Consequently, Board certifications are not a
factor in resolving this dispute. The Employer cur-
rently has collective-bargaining agreements with
both the Typographical Union and Local 3. The
Employer has set forth the pertinent section of its
contract with Local 3 which describes the Union's
jurisdiction as including "the work of or work nec-
essary to or connected with maintenance, servicing,
or repairing, relocation, extension or repairs or sub-
stitution of our addition to electrical and electronic
wiring apparatus or equipment." The Typographi-
cal Union's contract covers "composing room
work, all phototypesetting machines (and comput-
ers)-when the computer is performing composing
room work-and maintenance of all of the forego-
ing equipment and devices." Neither contract
clearly covers all of the work in dispute, and both
present equally legitimate claims to maintenance
and servicing of the Employer's electronic equip-
ment. Accordingly, we find that the factor of col-
lective-bargaining contracts does not favor an as-
signment to the employees in either unit over the
other.
3. Economy and efficiency of operation and
job impact
The record shows that employees represented by
the Typographical Union have operated as well as
maintained and serviced the system since it was in-
stalled pursuant to their special training for these
duties and that they are employed in the same loca-
tion and have had the experience of working to-
gether as a team. Inasmuch as these employees
have composing skills and experience, they have an
obvious advantage in ability to diagnose malfunc-
tions in the equipment. Should such work jurisdic-
tion be transferred to employees now fully em-
ployed who are represented by Local 3, it would
require the hiring of at least 28 to 30 additional em-
ployees, with a training period of 12 to 18 months.
The Employer's general foreman of the composing
room testified, without contradiction, that there are
no employees represented by Local 3 with suffi-
cient background and training to presently handle
this work. The record further shows that the hiring
of additional employees would result in the under-
utilization of employees represented by the Typo-
graphical Union because those employees have life-
time job guarantees arising from the installation of
the electronic equipment.
Accordingly, we find that the factors of econo-
my, efficiency of operation, and job impact favors
an award of the work in dispute to the employees
represented by the Typographical Union.
4. Employer assignment and preference
The Employer has assigned the work in dispute
to its employees represented by the Typographical
Union and prefers that assignment. This factor
favors an award of the work to those employees.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors, we conclude that
employees who are represented by New York Ty-
pographical Union No. 6, International Typo-
graphical Union, AFL-CIO, are entitled to per-
form the work in dispute based on their superior
skills and training, economy and efficiency of oper-
ation, job impact, and employer preference and as-
signment. In making this determination, we are
awarding the work in dispute to employees who
are represented by New York Typographical
Union No. 6, International Typographical Union,
AFL-CIO, but not to that Union or its members.
This determination is limited to the particular con-
troversy which gave rise to this dispute.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing facts and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
Employees of New York News, Inc., who are
currently represented by New York Typographical
Union No. 6, International Typographical Union,
AFLCIO, are entitled to perform the maintenance,
servicing, and repairing of the equipment compris-
ing the Electronic Publishing System located in the
sixth floor composing room and the seventh floor
editorial department of the Employer's facility lo-
cated at 220 East 42d Street, New York. New
York.
555