Offset Workers, Union No. 39

National Labor Relations Board - Board Decisions

Oct 7, 1971

193 N.L.R.B. 577 (N.L.R.B. 1971)

OFFSET WORKERS, UNION NO. 39
Offset Workers, Printing Pressmen & Assistants'
Union No. 39 and The Craftsman Press , Inc. and
Local #45-L, Lithographers and Photoengravers
International Union . Case 19-CD-174
October 7, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by the Craftsman Press, Inc., hereinafter
referred to as the Employer, alleging that Offset
Workers, Printing Pressmen & Assistants' Union No.
39, hereinafter referred to as Local 39, had violated
Section 8(b)(4)(D) of the Act. A hearing was held
before Hearing Officer Timothy D. Nelson on May 19
and 20, 1971.
Local 45-L, Lithographers and Photoengravers
International Union, hereinafter referred to as Local
45, Local 39, and the Employer 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,
Local 39, the Employer, and Local 45 filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Craftsman Press, Inc., is a State of Washington
corporation engaged in the business of commercial
printing, with its principal office in Seattle, Washing-
ton. During the past year, a representative period, its
gross volume of business exceeded $500,000 and
during the same period it purchased goods and
materials directly from points outside Washington
valued in excess of $50,000 and sold and shipped
products valued in excess of $50,000 to customers
outside Washington. We find that the Craftsman
Press, Inc., is engaged in commerce within the
meaning of the Act and that it will effectuate the
purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
577
The parties stipulated , and we find , that Local 39
and Local 45 are labor organizations within the
meaning of the Act.
III. THE DISPUTE
A. Work in Dispute
The dispute arises from the Employer's continued
recognition of Local 39 as the representative of all the
Web offset operators, regardless of the previous
ownership of the presses they operate.
B. Background and Facts of the Dispute
The Employer in 1968 purchased the stock of
Metropolitan Press, Inc., hereinafter known as Metro-
politan; the plan was to completely consolidate the
operations of the two companies; for tax purposes
and to benefit from the good will and customer
relationships of Metropolitan the consolidation oc-
cured over a 2-year period with Metropolitan remain-
ing a separate business entity until its dissolution as a
corporation on December 31, 1970.
The various labor organizations representing em-
ployees of Metropolitan were advised of the sale of
stock, the anticipated dates of the moving of the
various departments and the consolidation of the
companies. As each department was consolidated
into the Employer's operation the employees were
offered employment by the Employer; most accepted.
The Web offset presses were moved from Metropoli-
tan premises to the Employer for consolidation during
the summer of 1970; there were 15 employees for the
Web offsets at Metropolitan and they all accepted
employment, joining the Employer's 16 Web offset
operators. The Employer's Web offset operators,
regardless of their previous employer, all work out of
the same location, service the same accounts, work for
the same wages and fringe benefits, and are under the
same supervisors.
The Employer and Metropolitan, through their
membership in the Printing Industry of Seattle, a
multiemployer bargaining association, hereinafter
called PIS, had collective-bargaining contracts with
Locals 45 and 39. Local 45 was recognized by
Metropolitan and certified by the Board in Case
19-RC-1848 as the collective-bargaining representa-
tive for all production workers including Web offset
operators. Local 45 has also been recognized as the
collective-bargaining representative of certain em-
ployees of the Employer, but, by contract and Board
certification its Web offset operators have been
expressly excluded from Local 45's jurisdiction; Local
39 has been recognized by the Employer and certified
193 NLRB No. 86
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Board in Case 19-RC-2002 as the representa-
tive of its Web offset press operators.
The transition for most employees from Metropoli-
tan to the Employer occurred smoothly since Local 45
represented most employees at both companies. As to
the Web offset operators , there was a conflict. The
Employer notified the new employees who formerly
worked for Metropolitan that they must join Local 39
pursuant to its contract that required all Web offset
operators to be members of Local 39. Local 45
objected and claims to be the representative of any
employee who operates a Web offset press that was
formerly owned by Metropolitan.
Local 45 brought charges against Local 39 pursuant
to the AFL-CIO internal disputes plan. On August
20, 1970 , an award was made in favor of Local 45;
however , the Employer refused to be bound contend-
ing that it was not a party to the proceeding . Local 45
then invoked the arbitration provisions of its contract
with the Employer; on December 30, 1970, Local 39
advised the Employer that if any Web offset work was
assigned to a nonlocal 39-member Local 39 would
strike and at approximately the same time filed a unit
clarification petition in Case 19 -UC-65 which was
dismissed on January 11, 1971; review of the dismissal
was denied on February 16, 1971. The award went to
Local 45 but Local 39 continued the strike threat,
contending that it was not bound.
C. The Contentions of the Parties
The Employer contends that the inclusion of the
pressmen who operate the Web offset presses former-
ly owned by Metropolitan in the existing contractual
unit represented by Local 39 should not be altered.
The Employer argues that the collective-bargaining
contract with Local 39 grants that union exclusive
right to represent all of its Web offset operators; to
have two contracts in effect for the same employee,
one for when he operates an offset continuously
owned by the Employer and to have a second contract
in effect for when he operates an offset press 5 feet
away that happened to have been previously owned
by Metropolitan is both inefficient and uneconomi-
cal; and it is not bound by the arbitration resulting
from the AFL-CIO internal disputes plan, since it was
not a party to the proceedings.
Local 39 contends that as the union certified by the
Board and traditionally recognized by the Employer
as the collective -bargaining representative of all its
Web offset operators it should continue to represent
them regardless of the prior ownership of the Web
offset presses they may operate and that it is not
bound by the arbitration between the Employer and
Local 45, since it was not a party to the proceedings.
Local 45 moved the Board to quash the notice of
10(k) hearing on the basis that the jurisdictional
dispute has been determined by arbitration. Local 45
also contends that it should represent all Web offset
press operators , regardless of whom they originally
worked for, who operate Web offset presses previous-
ly owned by Metropolitan . Local 45 argues that the
Employer is the successor to Metropolitan and as
such is bound to the latter 's contract ; and has been
awarded the unit twice , once by an arbitration
proceeding resulting from the union 's contractual
relationship with the employer and by an arbitration
proceeding resulting from the AFL-CIO internal
disputes plan.
D. Applicability of the Statute
Before the Board may proceed with a determination
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. In
this case , Local 39 formally claimed the disputed work
contemporaneously with strike threats. We find that
Local 39 threatened to strike the Employer with the
object of requiring the Employer to assign particular
work to its members.
Local 45 cites Plasterers Local 79 v. N.L.R.B.
[Southern Construction Co.], 440 F.2d 174 (C.A.D.C.,
1970) cert. granted 401 U.S. 907, in support of its
contention that a voluntary adjustment of the dispute
had been agreed upon . There the court held that an
Employer was not a necessary party to the settlement
of a jurisdictional dispute . The Board, however, has
continued to adhere to its position that the employer
controlling the work assignments and the rival unions
or groups of employees involved are all "parties to
such dispute ," and all must approve and enter into a
voluntary settlement procedure in order to preclude a
hearing and determination pursuant to Section 10(k),
Lathers Union Local 104 (The Blaine Petty Company).
186 NLRB No. 70 . We therefore conclude that the
arbitration resulting from the AFL-CIO internal
disputes plan and the arbitration resulting from the
contractual relationship between Local 45 and the
Employer were not effective voluntary adjustments of
the dispute , within the meaning of Section 10(k), since
all of the parties did not participate in the proceed-
ings , did not join in the submissions to the two
arbitrators , and did not agree to be bound by the
decisions.
On the basis of the entire record, we find that there
is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that the dispute is
properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
OFFSET WORKERS, UNION NO. 39 579
an affirmative award of disputed work after giving
due consideration to various relevant factors. The
Board has held that its determination in ajurisdiction-
al dispute is an act of judgment based upon common-
sense and experience, reached by balancing those
factors involved in a particular case.
1. Collective-bargaining agreements
At all times material herein the Employer and the
now defunct Metropolitan both had collective-bar-
gaining contracts, through their membership in PIS,
with Local 39 and Local 45. Local 45's contract gives
it jurisdiction over most of Metropolitan's employees,
including Web offset operators; the same contract
while giving Local 45 jurisdiction over most of the
Employer's workers expressly excludes its Web offset
operators. Local 39's contract gives itjurisdiction over
all of the Employer's Web offset operators.
We find no merit in Local 45's contention that the
Employer is the successor to Metropolitan and as
such is bound to the latter's contract. We therefore
find that collective-bargaining contracts favor the
continued recognition of Local 39 as the representa-
tive for all the Employer's Web offset operators.
2. Board certifications
Local 39 was certified in Case 19-RC-2002 as the
exclusive bargaining representative of the Employer's
offset operators; Local 45 was certified in Case
19-RC-1884 as the representative of certain employ-
ees of both the Employer and Metropolitan, including
Metropolitan's offset operators, but excluding the
Employer's. We find that Board certifications favor
the continued recognition of Local 39 as the repre-
sentative of all the Employer's Web offset operators.
3. Company practice
The Employer has assigned the work in dispute to
its employees who are members of Local 39, which is
the collective-bargaining representative of its Web
offset operators. We find that company practice
favors the continued assignment of the work to
employees who are represented by Local 39.
4. Relative skills
Based on the record before us we can only conclude
that the skills required by the Employer are possessed
equally by members of Local 39 and Local 45.
5. Area and industry practice
Both unions represent a substantial number of Web
offset operators in the Seattle area; while Local 45
represents a slightly higher number of operators, we
find that the area and industry practice does not favor
either union.
6. Economy and efficiency
In the Employer's business it is often necessary for
operators to switch presses; if they finish onejob, the
next might require the use of a second press; if a job
takes longer to complete than planned, the operators
on the next work shift might unexpectedly be required
to finish the job using the original press. If two
contracts were in effect, one for Web offset presses
once owned by Metropolitan and one for the Web
offset presses continuously owned by the Employer;
the Employer would have to compute different wages
and fringe benefits and have different supervisors for
the operators, since supervisors are union members,
every time an operator changes presses, even if for
only a 10-minute job. We find that economy and
efficiency favor the continued recognition of Local 39
for all Web offset operators.
Arbitration Awards
Since the Employer has not agreed to be bound by
the arbitration decision resulting from the AFL-CIO
internal disputes plan and Local 39 has not agreed to
be bound by arbitration resulting from the contractu-
al relationship between the Employer and Local 45,
their awards of the work involved in this proceeding
are only one of the factors which we must consider in
assigning the disputed work.
The arbitration award resulting from the AFL-CIO
internal disputes plan was made on August 25, 1970,
and found that Local 45 should continue as the
representative of the operators of the Web offset
presses previously owned by Metropolitan on the
basis that Local 45's contract with Metropolitan
survived Metropolitan's purchase by the Employer.
Local 45's contract specified that the contract is to
remain in effect unless the sale or transfer is a bona
fide sale or transfer in the normal course of business.
On August 25, 1970, the arbitrator found that the
contract survived because Metropolitan remained a
separate corporation and business entity and the
Employer's advertising retained the identity of Metro-
politan by stating that the two companies, Craftsman
and Metropolitan, shared the same printing facilities.
However, since December 1970 when the Employer's
2-year consolidation period was completed Metropol-
itan ceased to exist as a corporation or separate
business entity and the Employer's advertising also
reflected this change. We find that the Employer's
purchase was a bona fide sale and transfer in the
normal course of business and that Local 45's
contract does not survive.
The arbitration between Local 45 and PIS resulted
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in an award for Local 45, again based on its contract
surviving Metropolitan's purchase. Even though the
award was made on March 1, 1971, which was after
the complete consolidation of the two companies, the
arbitrator found that the sale and transfer of Metro-
politan's plant was not a bona fide sale or transfer in
the normal course of business; the arbitrator also
refused to consider the Employer's economy and
efficiency of operations in making his award. We do
not agree with this award, we find that it was a bona
fide sale and transfer in the normal course of business,
and we do take the Employer's economy and
efficiency of operations into consideration.
CONCLUSIONS
Based upon the entire record, and after full
consideration of all relevant factors, we conclude that
the work in dispute should be assigned to pressmen
who are members of or represented by Local 39. We
reach this conclusion by relying on the Employer's
contracts and Board certifications recognizing Local
39 as representative for the Web offset operators, the
fact that the assignment of the work in dispute is
consistant with past practice, and the efficiency and
economy of operations that will result from such
assignment.
In making this determination, we are awarding the
disputed work to employees who are represented by
Offset Workers, Printing Pressmen & Assistants'
Union No. 39, but not to that union or to their
members. The present determination is limited to the
particular controversy which gave rise to this proceed-
ing.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and on the basis of the
foregoing findings and the entire record in this case,
the National Labor Relations Board makes the
following Determination of Dispute:
Employees of The Craftsmen Press, Inc., who are
members of or are represented by the Offset Workers,
Printing Pressmen & Assistants' Union No. 39, are
entitled to the assignment of the work of operating the
offset presses originally owned and operated by
Metropolitan Press, Inc., at the plant and premises of
The Craftsmen Press, Inc.