New York Typographical Union No. 6

National Labor Relations Board - Board Decisions

Sep 19, 1980

252 N.L.R.B. 271 (N.L.R.B. 1980)

NEW YORK TYPOGRAPHICAL UNION NO. 6
New York Typographical Union No. 6, AFL-CIO
and New York Times Newspaper Division of
the New York Times Company and Local Union
No. 3, International Brotherhood of Electrical
Workers, AFL-CIO. Case 2-CD-610
September 19, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by the New York Times News-
paper Division of The New York Times Company,
herein called the Employer, alleging that New
York Typographical Union No. 6, AFL-CIO,
herein called the Typographers, had violated Sec-
tion 8(bX4)(D) of the Act. A hearing was held pur-
suant to notice at New York, New York, on June
4, 1980, before Hearing Officer Larry Singer. The
Employer, the Typographers, and Local Union
No. 3, International Brotherhood of Electrical
Workers, AFL-CIO, herein called IBEW, ap-
peared at the hearing' and were afforded full op-
portunity to be heard, to examine and cross-exam-
ine witnesses, and to adduce evidence bearing on
the issues. Thereafter, the Employer filed a brief
with respect to the merits of the dispute, and
IBEW filed a "Second Motion to Dismiss the Sec-
tion 10(k) Notice of Hearing," and a supplement
thereto.
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 Hear-
ing Officer made at the hearing and finds that they
are free from prejudicial error; they are hereby af-
firmed.
Upon the basis of the entire record in this case,
the Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The New York Times is a New York corpora-
tion engaged in the publication and distribution of
a daily newspaper. In the course and conduct of its
business, the Employer annually receives gross rev-
enues in excess of $1 million and purchases supplies
valued in excess of $50,000 directly from firms lo-
cated outside the State of New York. Accordingly,
we find that the Employer is engaged in a business
J Counsel for IBEW appeared "specially" at the heanng whereas he
limited his participation to the issue of whether or not Sec. 8(bX4XiiXD)
had been violated.
252 NLRB No. 39
affecting commerce within the meaning of Section
2(6) and (7) of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction in this
proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
The Typographers and IBEW are labor organi-
zations within the meaning of Section 2(5) of the
Act.
III. THE DISPUTE
A. The Work in Dispute
The work in issue involves the service, mainte-
nance, and repair of automated composing room
equipment, known as the Harris System, which in-
cludes, inter alia, 7 computers, approximately 250
video display terminals, and various printers, pho-
totypesetters, disc drives, and computer consoles
situated in the composing room and other areas
within the Employer's New York facility.
B. Background and Facts of the Dispute
Beginning in the early 1960's the Employer
began to utilize electronic equipment in the compo-
sition of the newspaper, the repair and maintenance
of which was assigned to employees represented by
the Typographers. In 1974, the Employer and the
Typographers entered into a collective-bargaining
agreement which contemplated extensive introduc-
tion of automated equipment into the Employer's
composing room and other areas of the newspa-
per.2 Pursuant thereto, the Employer in 1976 intro-
duced the sophisticated Harris System which en-
ables it to capture, store, retrieve, and manipulate
news information on video display terminals; to as-
semble news matter in appropriate print form; and
to instruct computers to produce type in single-
column form. The Harris Company, as manufactur-
er of the equipment, provided installation and ini-
tial maintenance of the new equipment. At or about
that time, the Employer selected 24 of the 40
Technicians Services Department employees, who
are represented by the Typographers, to be trained
to perform maintenance and repair of the Harris
System equipment. The Employer's actual assign-
ment of the work to these employees, however, did
not occur until February or March 1978.
The instant dispute was initiated by the IBEW
December 12, 1979, letter to the Employer de-
manding arbitration of the work assignment which
it claimed under section 8 of its contract with the
Employer. Thereafter, the Employer notified the
I The touchstone of their contract was the Employer's agreement to
guarantee lifetime jobs to employees whose jobs are abolished by intro-
duction of such equipment.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Typographers of the IBEW demand and inquired
whether it wished to participate in such arbitration.
The Typographers responded by letter dated Janu-
ary 8, 1980, which stated it would not participate
and, further, that it would strike if necessary to
protect its contractual jurisdiction over the work in
question. In response to the Typographers strike
threat, the Employer filed the instant charge on
January 18, 1980.
C. The Contentions of the Parties
The Employer and the Typographers contend
that the employees presently assigned to perform
the work in dispute are entitled to it based on their
superior skills and training, the Typographers con-
tractual jurisdiction, the Employer's preference and
assignment, industry and area practice, and econo-
my and efficiency of the Employer's operation.
The IBEW, as noted supra, did not take any po-
sition at the hearing on the merits of the dispute,
but contests the propriety of exercise of Board ju-
risdiction. It also claims the disputed work under
section 8 of its collective-bargaining agreement
with the Employer.
D. Applicability of the Statute
At the hearing IBEW moved to dismiss this Sec-
tion 10(k) proceeding on the grounds that the Em-
ployer is abusing Board processes by initiating this
proceeding in the absence of credible evidence of a
threat in violation of Section 8(b)(4)(D). It further
contends that agreed-upon methods of adjustment
of the dispute exist; namely, its contractual obliga-
tion to arbitrate such work assignment disputes and
the AFL-CIO Internal Disputes Plan to which
both Unions are bound and which, pursuant to a
June 26, 1980, decision rendered by an impartial
umpire under the plan, awarded the disputed work
to its members and, therefore, constitutes a binding
award of the work in issue herein.
We find these contentions lacking in merit. The
Typographers January 8 letter on its face clearly
threatens strike action to protect its work jurisdic-
tion. In addition, testimony by Mortimer, the Em-
ployer's senior vice president, shows that such a
confrontation reasonably could be anticipated if
any more work were to be removed from the Ty-
pographers jurisdiction because of already existing
tensions associated with heavy staff reductions re-
sulting from the Employer's ongoing program of
automating its operations. Accordingly, we find
reasonable cause to believe that Section 8(b)(4)(D)
of the Act has been violated.
With respect to the existence of agreed-upon
methods for the voluntary adjustment of the dis-
pute, the record evidence shows no arbitration re-
quirement in the collective-bargaining agreement
between the Employer and the Typographers, 3 and
the IBEW contract with the Employer is not in
evidence. Moreover, there is no evidence that the
Employer has agreed to submit work assignment
disputes to the AFL-CIO Internal Disputes Plan
and, therefore, that forum cannot be construed as
an agreed-upon method of adjustment.4 According-
ly, we conclude that the instant 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 the disputed work
after giving due consideration to various factors.6
The Board has held that its determination is an act
of judgment based on commonsense and experience
reached by balancing those factors involved in
each case. 6
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
Section 8 of the IBEW contract with the Em-
ployer, which is quoted in the impartial umpire's
decision accompanying its motion to dismiss and of
which we take official notice, "concerns the work
of . . . maintenance, servicing, repairing . . . elec-
trical and electronic wiring apparatus or equip-
ment." The Typographers contract work jurisdic-
tion includes "all composing room work . . . all
phototypesetting machines [and computers] ...
when the computer is performing composing room
work . . . and maintenance of all the foregoing
equipment and devices .... " Neither contract
clearly covers all of the work in dispute, and both
present an equally legitimate basis on which to
claim the work. Accordingly, we find that the
factor of collective-bargaining contracts does not
favor an assignment to the employees in either unit
over those in the other.
s The Typographers contract provides:
It is agreed that this Contract determines the agreement of the par-
ties covering the jurisdiction over work processes specified herein.
Any dispute concerning such jurisdiction shall not be subject to arbi-
tration.
4See Local Union 825, International Union of Operating Engineers
AFL-CIO (Schwerman Co. of Pa. Inc.), 139 NLRB 1426, 1429 (1962).
N.LR.B. v. Radio & Television Broadcast Engineers Union. Local
1212. International Brotherhood of Electrical Workers AFL-CIO [Colum-
bia Broadcasting System], 364 U.S. 573 (1961).
e International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
272
NEW YORK TYPOGRAPHICAL UNION NO. 6
2. Employer, area, and industry practice
For approximately 20 years the Employer has
recognized the Typographers as collective-bargain-
ing representatives of its employees who perform
the type of work in dispute. With regard to area
practice, testimony by the Typographers vice presi-
dent, Crockett, discloses that members of Typogra-
phers perform similar work at The New York
Daily News and The New York Post newspapers.
Crockett further testified that the practice of utiliz-
ing typographers for maintenance of electronic
composing equipment applies to the New York
commercial printing industry, and to the newspa-
per industry nationally. In view of the foregoing
evidence, and the lack of evidence with respect to
IBEW-represented employees, we conclude that
the factors of employer, area, and industry practice
favor an award of the disputed work to the em-
ployees represented by the Typographers.
3. Skills and training
The record evidence shows that, beginning in
the 1960's, the Employer has been subsidizing a
home study correspondence course in basic elec-
tronics for composing room employees and others
represented by the Typographers. It has also pro-
vided them with on-the-job training and, as in the
case of 24 employees selected to work on the
Harris System, specialized training by manufactur-
ers of particular equipment. The evidence further
reveals that employees with composing skills and
experience who are familiar with the characteristics
of type, such as font, face, style, size, and position,
have an obvious advantage in their ability to diag-
nose malfunctions of electronic machinery whose
function is to produce such type. Martin, the Em-
ployer's director of prepress operations, testified
that the employees currently assigned the disputed
work have the background experience, skills, and
training to maintain the Harris System equipment
properly, and that the Employer is satisfied with
their work performance. He further indicated that
assignment of this work to any other employees
would necessitate a training program for develop-
ment of the requisite skills. Accordingly, we find
the factor of skills and training favors an award
consistent with the Employer's assignment.
4. Economy and efficiency
Prepress Director Martin testified that the Em-
ployer employs a large number of "underutilized
employees" because of its contractual obligation to
the Typographers to provide lifetime jobs for em-
ployees whose jobs have been displaced by auto-
mated equipment. He acknowledged that the Em-
ployer's assignment of the disputed work was in
part related to this available labor resource, where-
as assignment to IBEW unit members would in-
volve hiring additional employees and result in du-
plication of the Employer's labor force. We find
the factor of economy and efficiency favors an
award to the employees in the Typographers unit.
Conclusion
Upon the record as a whole, and after full con-
sideration of all the relevant factors involved, we
conclude that the Employer's employees represent-
ed by the Typographers are entitled to the disputed
work based on their superior skills and training; the
employer, area, and industry practice; and econo-
my and efficiency of the Employer's operation. In
making this determination we are awarding the
work in dispute to employees who are represented
by New York Typographers Union No. 6, AFL-
CIO, but not to that particular organization or its
members. This determination is limited to the par-
ticular controversy which gave rise to this pro-
ceeding.
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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
Employees of The New York Times Newspaper
Divison of The New York Times Company cur-
rently represented by New York Typographical
Union No. 6, AFL-CIO, are entitled to perform
the work of service, maintenance, and repair of
automated composing room equipment, known as
the Harris System, at the Employer's newspaper
plant facilities in New York, New York.
273