New York Typographical Union No. 6

National Labor Relations Board - Board Decisions

Sep 16, 1976

225 N.L.R.B. 1311 (N.L.R.B. 1976)

NEW YORK TYPOGRAPHICAL UNION NO 6 1311
New York Typographical Union No. 6, International
Typographical Union, AFL-CIO i and The New
York Times Company and Newspaper Guild of New
York , Local 3, The Newspaper Guild , AFL-CIO 2
Case 2-CD-505
find, as the parties have stipulated, that the Employer
is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and that it will effectuate
the policies of the Act to assert jurisdiction herein.
September 16, 1976
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, PENELLO, AND WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by The New York Times Company
(herein called the Employer) on December 3, 1975,
alleging that Local 6 had violated Section 8(b)(4)(D)
of the Act by engaging in certain proscribed activi-
ties with an object of forcing the Employer to contin-
ue to assign certain work to employees represented
by Local 6, rather than to employees represented by
the Guild.
Pursuant to notice, a hearing was held before
Hearing Officer Mary W. Taylor on April 19 and
May 3, 19, and 21, 1976. All parties appeared at the
hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. Thereafter,
the Employer and the Guild 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 briefs and
the entire record in this case and hereby makes the
following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer, whose principal place of business is
in New York, New York, is engaged in publishing a
daily and Sunday newspaper. Its annual revenues are
in excess of $1 million. The parties stipulated that the
Employer holds membership in interstate news serv-
ices, Associated Press, and United Press Internation-
al; that it advertises nationally sold products, and
that it is delivered directly to subscribers and distri-
butors located in States other than New York. We
1 Herein referred to as Local 6
2 Herein referred to as the Guild The name of the Guild was amended at
the hearing
11. THE LABOR ORGANIZATIONS
The parties stipulated, and we find, that the Guild
and Local 6 are labor organizations within the mean-
ing of Section 2(5) of the Act.
ILL THE DISPUTE
A. Background
The Guild and Local 6 have for many years repre-
sented separate units of the Employer's employees.
Both Unions have current collective-bargaining
agreements with the Employer.
The dispute herein, like the one considered in New
York Typographical Union No. 6, International Typo-
graphical Union, AFL-CIO (The New York Times
Company), 218 NLRB 998 (1975), has its basis in the
Employer's decision to automate its typesetting pro-
cedures; utilizing the optical character recognition
device (OCR)-commonly known as the scanner-as
the core component of the automated system. As in
the prior case, the Employer, through its attorney,
explained that, for several years prior to 1974, Local
6 and the Employer bargained about the introduc-
tion of automated procedures in the Employer's
composing room. In 1974 the parties executed a col-
lective-bargaining agreement wherein Local 6 agreed
to the introduction of automation in the Employer's
composing room and the Employer agreed to guar-
antee lifetime employment to Local 6 employees.
As for the system itself, the scanner can be charac-
terized as an "input device" that initiates a chain of
events within the computer system: it takes the opti-
cally prepared copy, commonly known as scanner-
ready copy, scans it, digitizes the scanned informa-
tion into the computer (which also "lifts" the appro-
priate information for billing purposes), assembles
the ads in their appropriate groupings, alphabetizes
them, and instructs the computer as to how each ad
is to appear (with respect to type size, hyphenation,
and general arrangement) in final form
Unlike the prior decision noted supra, which in-
volved the work of "feeding" the scanner, the proce-
dure at issue here is the preparation of the classified
ads in scanner-ready form. Prior to automation, the
classified ads were handled in the following fashion:
the ads arriving at the Employer via the U.S. mail
were received by the mail ad taker who pasted the ad
onto the standard ad order form, wrote on the form
225 NLRB No. 190
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the proper classification and dates of insertion, and
circled and wrote in the necessary billing informa-
tion. The ad taker also determined how the ad could
be set to best advantage, and therefore determined
the type size, face, and general format, writing this
typesetting information on the copy for the printers.
The ad then went to the copy passer who made sure
it conformed to the Employer's standards; and from
there to the credit checker who verified the
subscriber's credit status. After the credit verifica-
tion, the ad was returned to the classified department
where it was sorted and "batched" and sent on to the
composing room where the text of the ad was set in
hot type by employees represented by Local 6. All
operations not performed by Local 6 were performed
by employees represented by the Guild. The ads tak-
en over the counter by the ad clerk and by telephone
by the ad taker (both Guild represented employees)
followed the same course on their way to the com-
posing room.
After the introduction of the scanner and comput-
er, the jobs eliminated were, inter aha, those of credit
checker and ad checker as the computer assumed the
billing and review functions formerly performed by
those employees. In addition, after automation, the
job duties performed by the employees in question
underwent some modification. Now, after computer-
ization, the workflow is as follows: all mail ads that
reach the classified department that are not scanner-
ready agency-copy' are sent to the ad taker, a Guild-
represented employee, who writes or arrows in the
billing data in the appropriate fields at the top of the
scanner form, also known as a header, which is past-
ed to the top of the copy on its arrival at the Times.
The ad taker also writes or arrows in the ad's classifi-
cation, insertion dates, and number of insertions in
the appropriate fields at the bottom of the "header."
The copy itself is then marked by the ad taker with
respect to necessary type size, format instructions,
and the sort key so that the computer will alphabe-
tize the ad in the proper fashion. Upon completion of
this task, the annotated copy is then sent to the copy
passer who checks it for errors and then sends the
copy to the composing room where a typist, repre-
sented by Local 6, translates the typesetting instruc-
tions, billing information, classification, insertion
dates, and number of insertions, as well as the text of
the ad, into Delta-code on a scanner form. A Local 6
7 As will be more fully explained , infra, one of the requirements under the
automated system is that the copy be scanner-ready, i e , that it be translat-
ed into Delta -code, so that the scanner can "read" the necessary informa-
tion Recognizing that a large part of its classified ads emanate from adver-
tising agencies , the Employer undertook to instruct these agencies in the
preparation of Delta-coded ads A large proportion of agency -copy arrives
at the Times already Delta-coded and therefore ready to be fed immediately
into the scanner
employee then feeds the scanner-ready copy into the
OCR system (see New York Times Company, supra)
which then lifts the information off the scanner form
so that the ad will be correctly laid out, positioned,
alphabetized, credit verified, and billing completed.
With respect to the ads that are placed by tele-
phone, Guild employees themselves directly code the
copy by typing the text of the classified ad, the credit
information, and other pertinent data, such as the
desired ad format, type size, and the like so as to feed
the computer's memory bank with the necessary
credit information.4
Of the work in question , 25 percent comes in by
telephone and is therefore keyboarded directly by
employees represented by the Guild. The remaining
75 percent is mail copy, 90 percent of which is scan-
ner-ready agency copy. The percentage of work in
dispute then is 10 percent of 75 percent, or approxi-
mately 7.5 percent of the total work. This 7.5 percent,
as noted supra, is the keyboarding of the text, billing
information, classification, and insertion data into
Delta-code as performed by composing room em-
ployees represented by Local 6 and is the work at
issue.
By letter to the Employer dated October 29, 1975,
the Guild demanded arbitration over the issue of the
transfer to Local 6 of the work of preparing scanner
forms heretofore performed by Guild members.5 On
November 17, 1975, the Times notified Local 6 of the
arbitration demand and asked for its participation in
the jurisdictional arbitration. On November 25, 1975,
Local 6 replied that it properly had jurisdiction of
this work and was performing it, that such a dispute
was not arbitrable under the Local 6 contract, and
that Local 6 would strike to protect its jurisdiction.
B. The Work in Dispute
As described in the notice of hearing, the work in
dispute is "the assignment of the work of keyboard-
ing non-scannable copy and work related thereto." 6
4 It should be noted that the Guild is already doing the work of preparing
scanner-ready copy only where the ad is received by telephone. and that this
work is not in dispute The prior decision at 218 NLRB 998 made it appear
that the employees represented by the Guild coded all incoming work Tes-
timony in the instant hearing , however , revealed that the Guild is responsi-
ble for Delta-coding on a keyboard only those ads that come in via tele-
phone
5It should be noted that , other than the ad takers in the board room
(telephone ), employees represented by the Guild have never performed key-
boarding operations and that while they do instruct the composing room
employees ( Local 6) in the codes to be used on a particular item, these
instructions are handwritten
6 At the hearing there was a question as to the description of the disputed
work In its brief , the Guild defined the work as " the preparation of the
forms utilized in the automated billing and typesetting of classified advertis-
ing copy received at the Times from outside sources" We find the distinc-
tion to be one of form rather than substance
NEW YORK TYPOGRAPHICAL UNION NO. 6 1313
C. Contentions of the Parties Employer's reasonable apprehension that one could
It is the contention of the Guild that the work in
question should properly be assigned to employees
under its jurisdiction, maintaining that under the pre-
computerized system, the classified department em-
ployees (represented by the Guild) performed what
might be termed an "instructive" function. In es-
sence, they directed the composing room employees
as to the layout of the ad (as well as delineated the
pertinent billing information for the credit depart-
ment) and these composing room employees (repre-
sented by Local 6) then keyboarded the ad on the
linotype machine in hot type, producing a slug. The
Guild now claims that the introduction of the scan-
ner and the computer have supplanted the function
of the linotype machine, and therefore the jobs of
Local 6 employees, as the computer now produces an
end product analogous to the slug, which is used in
the printing of the classified ads in the published
newspaper. The Guild is therefore making the basic
claim, inter alia, that its employees, rather than those
represented by Local 6, should be keyboarding the
text and tangential information of the ad, as the only
human function remaining is that of instructing the
computer (the "instructive" function traditionally
performed by Guild employees); and that the key-
boarding-translation of these instructions into com-
puter language (Delta-code)-functionally belongs
to employees represented by the Guild.
The Times and Local 6 (which took no position
independent of the Employer herein) maintain that
the work in question, which has already been as-
signed to Local 6, rightfully belongs to that Local
based, inter alia, on reasons of economy, skills, tradi-
tional assignment of work, and the appropriate con-
tract provisions.
D. Applicability of the Statute
Before the Board may proceed to the determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisified that (1) there is reasonable cause
to believe that Section 8(b)(4)(D) of the Act has been
violated, and (2) the parties have no agreed-upon
method for the voluntary adjustment of the dispute.
As to (1), the record shows that by letter dated
November 25, 1975, Local 6 expressed a readiness to
strike in order to retain the Employer's work assign-
ment. Like the prior New York Times case, supra, we
find that the Employer reasonably interpreted Local
6's letter as conveying a threat to strike if the Em-
ployer reassigned the disputed work to employees
represented by the Guild. The fact that no strike ac-
tually took place does not detract from the
occur.' Accordingly, we find reasonable cause to be-
lieve that Section 8(b)(4)(D) of the Act has been vio-
lated.
With respect to (2) above, the record disclosed that
there is no agreed-upon method binding on all of the
parties for the voluntary adjustment of the dispute.'
It must also be noted that the dispute herein, like the
prior case, noted supra, is not capable of resolution
through arbitration, as neither the Employer's con-
tract with the Guild nor with Local 6 provides for
tripartite arbitration.' Accordingly, we find that the
dispute is properly before the Board for resolution
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 the disputed work af-
ter giving due consideration to various relevant fac-
tors, including:
1. Certification and collective-bargaining
agreements
Like the previous case 10 the record fails to show
whether either labor organization has been certified
by the Board as representative of the employees per-
forming the disputed work. The Employer, however,
has current collective-bargaining agreements with
both Local 6 and the Guild.
Each Union cites its collective-bargaining agree-
ment as controlling herein. Accordingly, an examina-
tion of the applicable provisions of each is in order.
Local 6 cites two provisions: article 8, paragraph (A)
and article 9, paragraph (A): The first of these states
that,
The operation and maintenance of Optical
Character Readers and related equipment when
used for composing room work wherever locat-
ed will be within the jurisdiction of the Union.
Article 9(a), entitled "WORK ARRANGEMENTS
AND INPUT" further states:
All classified copy . . . in any form (electronic,
tape , scanner ready or hard copy) sent to the
composing room will be processed . However, no
typing pools will be formed and copy supplied
7 Carpenters District Council of Denver and Vicinity (Godwin Bevers Co,
Inc), 205 NLRB 155 (1973)
8 N L R B v Plasterers' Local Union Local No 79, Operative Plasterers'
and Cement Masons' International Association, AFL-CIO [Texas State Tile
& Terrazzo Co, et al J, 404 U S 116 (1971)
9 The New York Times, supra, Nashua Printing Pressmen and Assistants'
Union No 359 (Telegraph Publishing Company), 212 NLRB 942 (1974)
0 The New York Times, 218 NLRB 998
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Publisher that requires keyboarding and
all keyboarding, including corrections and
changes that must be entered into the system
from hard copy and necessary coding, will be
deemed composing room work.
Processing of classified copy will include match-
ing of pickup copy to copy on file and correcting
it to include the customer's changes; keyboard-
ing of non-scannable copy and pickup copy not
found on file; rekeyboarding of copy when re-
quired; operation of the optical character reader
. . . ." [Emphasis supplied.]
The Guild cites the preamble of its contract with
the Employer which states in relevant part that:
All work or work functions normally or current-
ly performed by employees in the bargaining
unit, and any new or additional work requiring
the same or similar purpose for which bargaining-
unit employees are currently employed, shall be
performed by such employees notwithstanding
the introduction or use of any new or automated
system, processes or mechanized or automated
equipment that any [sic] alter or modify the
method or skill by which such work or work
functions may be performed. [Emphasis sup-
plied.]
It is agreed that when a computer or such auto-
mated processes as are referred to above are per-
forming Guild work, the Guild's jurisdiction in-
cludes any employee engaged in the preparation
of input and all handling of output, operation of
the computer and all input and output devices,
programing and maintenance of all the fore-
going equipment and devices . . . .
Whenever The Times introduces new or auto-
mated processes or mechanized equipment that
may affect thejurisdiction of both the Guild and
any other union, The Times agrees that whenev-
er Guild work is performed, employees in the
Guild's jurisdiction shall operate the equipment
and/or perform such work as may be necessary
to produce the work normally performed by the
Guild.
The Times further agrees that such equipment
or processes shall not be used to produce such
work unless employees in the Guild's jurisdic-
tion perform the operation.
The Guild's jurisdiction shall not be adversely
affected in any respect by any agreement en-
tered into or any assignment of work made by
The Times with any other union.
It is clear from an examination of the applicable
contract provisions that only the Local 6 contract
contains a specific reference to the keyboarding op-
eration that converts nonscannable copy into scan-
ner-ready copy, and that that specific reference
leaves no question but that the Employer and Local 6
intended that the keyboarding in question is work
belonging to the employees represented by Local 6.
It should be noted that, while the Guild contract also
considers the question of automation, it deals with it
in a somewhat nonspecific fashion, speaking in terms
of "same or similar purpose." There is, of course, a
reasonable disagreement as to the purpose of the
functions performed by Guild and Local 6 employ-
ees prior to automation and the extent to which me-
chanization has supplanted the human component of
the operations performed by the respective employ-
ees. It is to be realized that resolution of this question
may indeed be susceptible to a kind of subjective
preception of the actual workflow and the role of the
respective employees therein, i.e., is preparation of
the scanner form and "instructive function" to be
performed by employees represented by the Guild in
that the scanner form is what ultimately instructs the
computer with respect to its output. Or, can we not in
fact view the keyboarding work currently being per-
formed by Local 6 employees as translating instruc-
tions given by the Guild into Delta-code as a physi-
cal process, much like the one they performed when
operating the linotype machine, and "translated" in
effect the copy received into hot type. An analysis
such as this can only lead us to the awareness of the
difficulty in translating one work process to another
and to a recognition of the formidable task of re-
ligning specific tasks within that new process.
Accordingly, and taking all of the above into ac-
count, we find that the above-cited contract provi-
sions demonstrate that the Employer has sought to
preserve work jurisdictional lines in accordance with
the job functions traditionally performed by the em-
ployees represented by the respective Unions. In ad-
dition, as noted above, the Employer's contract with
Local 6 specifically and unequivocally states that the
keyboarding of nonscannable classified copy shall be
performed by employees represented by it. We there-
fore find that Local 6's collective-bargaining agree-
ment favors awarding the disputed work to employ-
ees represented by Local 6.
2. The employer, area, and industry practice
The Employer has utilized the scanner system as
part of its automated typesetting procedure since
mid-1974. It is apparent that at no time since the
introduction of this automated system has The Times
NEW YORK TYPOGRAPHICAL UNION NO 6 1315
contemplated using Guild employees in a "keyboard-
ing" capacity other than in the board room where
Guild employees receive ads by telphone and make
them scanner-ready as they are called in. In addition,
as noted above, the physical act of keyboarding has
traditionally been a function performed by the em-
ployees of Local 6, much in the same manner as they
keyboarded at their linotype machines. Consequent-
ly, the Employer's historical practice of assigning the
typesetting work to employees represented by Local
6 favors an award of the work in dispute to these
employees.
With respect to area practice, the record revealed
that none of the New York papers other than the
Employer are using the scanner for the preparation
of its classified ads. Area practice cannot therefore
be a determining factor herein.
A good deal of evidence was presented with re-
spect to industry practice and such evidence appears
to favor assignment of the work to the Guild; it is not
however the only factor to be considered and must
be examined in a context with the question of econo-
my of operation, discussed at length, infra.
3. Skills, efficiency, and economy
While the function of keyboarding requires the
ability to use an electric typewriter, neither the physi-
cal act of typing nor the learning of the Delta-code is
so complex that great time and effort must be ex-
panded in its mastery. In addition, while the Guild
employees learned the code system in order to in-
struct the employees represented by Local 6, these
latter employees have traditionally utilized a key-
boarding operation in their work." Accordingly, we
find that the factor of skill does not favor the claim
of either union.
The record further reveals that the assignment of
the work to employees represented by Local 6 was
based on reasons of economy. As a result of the in-
stallation of the scanner and computer system, the
Employer has been able to reduce its work force by
approximately 125 composing room employees. Fur-
ther, as noted in the prior decision and as was stated
in the instant hearing, for several years prior to 1974,
Local 6 and the Employer bargained about the intro-
duction of automated procedures in the Employer's
composing room. In 1974, when the parties executed
a collective-bargaining agreement wherein Local 6
agreed to the introduction of automation in the
Employer's composing room, the Employer agreed to
guarantee lifetime employment to Local 6 employ-
ees. As a result of this agreement, it is therefore not
necessary for the Employer to hire new employees to
perform the disputed work, as the employees now
keyboarding the copy to be made scanner-ready are
the same employees who operated the extinct lino-
type machines and to whom the Employer made its
guarantee of employment. Further, if the work were
to be assigned to employees represented by the
Guild, new employees would have to be hired.12 Nor
is there any evidence to the effect that Guild employ-
ees will be laid off as a result of the assignment to
Local 6 employees for Guild employees will continue
to do what they have always done, provide instruc-
tions to the composing room employees.
Accordingly, we find that the factors of economy
and efficiency favor awarding the work in dispute to
employees represented by Local 6.
4. The Employer's assignment
The Employer has assigned the disputed work to
the employees represented by Local 6 and is satisfied
with their performance of the assigned work. There-
fore, this factor militates in favor of an award to the
employees represented by Local 6.
Conclusion
Upon the entire record in this proceeding and after
full consideration of all relevant factors, we conclude
that the Employer's employees who are represented
by Local 6 are entitled to perform the work here in
dispute. We reach this conclusion on the basis of the
Employer's long-established practice of assigning
typesetting and keyboarding functions to employees
represented by Local 6, the collective-bargaining
agreements, and the efficiency and economy of the
operations. We find that all these factors, taken to-
gether, along with the Employer's preference, more
than outweigh the fact that there is no area practice,
and that industry practice appears to favor the em-
ployees represented by the Guild. Accordingly, we
shall determine the dispute by awarding the work in
dispute to the Employer's employees represented by
Local 6, but not to any labor organization of which
these employees are members. Our present determi-
nation is limited to the particular controversy which
gave rise to this proceeding.
" It should be noted that the scanner is located in the composing room
and that Local 6 employees are assigned the work of feeding scanner-ready
copy
12 There was a conflict in testimony as to the number of new employees
required, but it is clear that at least 6-8 would be needed, and perhaps as
many as 25
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF THE DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, and upon the basis of the foregoing
findings and the entire record in this proceeding, the
National Labor Relations Board makes the following
Determination of Dispute:
Employees of the New York Times Company who
are represented by the New York Typographical
Union No. 6, International Typographical Union,
AFL-CIO, are entitled to perform the work of key-
boarding nonscannable copy and work related there-
to, at the New York Times Company.