Philadelphia Typographical Union, Local No. 2

National Labor Relations Board - Board Decisions

Apr 16, 1963

142 N.L.R.B. 36 (N.L.R.B. 1963)

36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case , I recommend that the complaint herein be dismissed
in its entirety.
Philadelphia Typographical Union , Local No. 2 and Philadel-
phia Inquirer, Division of Triangle Publications, Inc.
Philadelphia Typographical Union , Local No. 2 and Newspaper
Guild of Greater Philadelphia .' Cases Nos. 1-CD-77 and 4-CD-
78. April 16, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act following
charges filed by Philadelphia Inquirer, Division of Triangle Publica-
tions, Inc., herein called the Employer, and Newspaper Guild of
Greater Philadelphia, herein called the Guild, against Philadelphia
Typographical Union, Local No. 2, herein called the Typographers,
alleging that the Typographers induced or encouraged employees of
the Employer to refuse to handle or work on certain goods, articles, or
materials and to refuse to perform certain services with an object of
forcing or requiring the Employer to assign particular work to em-
ployees who are members of the Typographers, rather than to em-
ployees who are members of the Guild. A duly scheduled hearing was
held before Katherine W. Neel, hearing officer, on various dates be-
tween November 2, 1961, and May 4,1962. The Employer, the Typog-
raphers, the Guild, Photo-Engravers Union No. 7, International
Photo Engravers Union of North America, AFL-CIO, herein called
the Photo Engravers, and, International Typographical Union, AFL-
CIO, herein called the ITU, all appeared at the hearing and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing upon the issues 2 The rul-
I The charge in Case No . 4-CD-77, filed by the Employer against the Typographers, re-
lated to the operation of the 'darkroom in connection with the photocomposition process.
The charge in Case No . 4-CD-78, filed by the Guild against the Typographers , related to
the same darkroom work as well as to certain "lpaste-up" work . On November 20, 1961,
the Regional Director dismissed those portions of the charge in Case No. 4-CD-78 relating
to "paste-up" work, leaving in effect only those portions dealing with darkroom work.
Since the remaining portions of the two charges thus involved identical work, the Re-
gional Director consolidated the two cases.
9 At the hearing , various parties excepted to the hearing officer's granting of motions
to intervene by the Photo Engravers and the ITU . Since the Photo Engravers was a
party to a then -current contract with the Employer under which it claimed some of the
work in dispute and since the Respondent in this proceeding is a local of the ITU, we find
that the motions to intervene were properly granted . Subsequent to the hearing, the
Employer and the Typographers requested oral argument before the Board . As the record
and briefs adequately present the issues and positions of the parties , the requests for oral
argument are denied.
142 NLRB No. 1.
PHILADELPHIA TYPOGRAPHICAL UNION, LOCAL NO. 2 37
ings of the hearing officer made at the hearing are free from preju-
dicial error and are hereby affirmed .3
Upon the entire record, the Board makes the following findings :
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated that the Employer is a Delaware corporation
which, through its Philadelphia Inquirer Division, publishes a daily
and Sunday newspaper in Philadelphia, Pennsylvania, and has a
gross volume of business in excess of $500,000 annually ; and that
these newspapers carry both local and national advertising. The Em-
ployer concedes, and we find, that it is engaged in commerce within
the meaning of the Act and that it will effectuate the policies of the
Act to assert jurisdiction herein 4
U. THE LABOR ORGANIZATIONS
As stipulated by the parties, the Typographers, the Guild, the ITU,
and the Photo Engravers are all labor organizations within the mean-
ing of the Act.
III. THE DISPUTE
A. The basic facts
The Employer publishes a daily and Sunday newspaper in the city
of Philadelphia. Until 1959 the Employer used only "hot metal"
processes, that is, those utilizing molten metal, for the creation of type.
The best known and most frequently used of these processes is Lino-
type, in which an employee operates a keyboard, somewhat akin to a
typewriter keyboard, to cast the letters. These letters are then assem-
bled into metal page outlines or forms. Illustrations and photographs
which have been engraved on zinc plates are then added. The com-
pleted form is then sent to the stereotyping department for further
processing. Types of unusual shapes or sizes, not available on Lino-
type, are set by Monotype or Ludlow, which also are "hot metal"
processes.
5 The hearing officer referred to the Board motions by the Guild to dismiss the charges
and to rescind the notice of hearing . In support of these motions , the Guild argued that,
as all the unions involved herein are affiliated with the AFL-CIO and bound by its juris-
dictional disputes procedures , the parties have agreed "upon methods for the voluntary
adjustment of the dispute ." We find no merit in this contention for, aside from the
Typographers ' denial that it is bound by such procedures , it is clear that the Employer
has never agreed to be bound by them. In order to fulfill this requirement of Section
10(k), all parties , including the Employer, must be bound . United Brotherhood of Car-
,penters and Joiners of America, AFL-CIO, Local 1622 ( 0. R. Karst ), 139 NLRB 591;
International Union of Operating Engineers, Local 66, AFL -CIO (Frank P. Badolato &
Son), 135 NLRB 1392 , 1395-1396. The Guild further argued that the proceeding herein
was the result of collusion between the Employer and the Typographers, who were seek-
ing "in bad faith" to abuse Board processes . We find that the record does not substantiate
-these contentions . The motions are hereby denied.
d Bellevilbe Employing Printers, 122 NLRB 350.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In conjunction with the "hot metal" operation, the Employer makes
occasional use of a photographic process in the preparation of advertis-
ing matter which is to appear in the newspaper. This darkroom work
is performed by photographers in the editorial department, who also
take, develop, and print news photographs and who have been repre-
sented by the Guild since it was certified by the Board in 1943. The
photoengraver's function in the "hot metal" process is to engrave metal
plates or "cuts" of illustrations and photographs and to engrave a
metal plate of the entire page after it has been processed by the stereo-
typers. It is this metal plate which is eventually used on the printing
presses. On occasion, when an editorial department photographer is
unavailable, a photoengraver may be asked to make a photographic
negative from a positive or from some other kinds of material.
In 1959 the Employer introduced a new process, called photo-
composition, and a new piece of equipment, called the Linofilmm ma-
chine, which, at the time of the hearing, was producing 20 percent
of the newspaper's advertising matter but none of its editorial matter.
Photocomposition is a technique of creating type which uses a photo-
graphic principle in place of the "hot metal" casting under the old
system. A keyboard similar to the Linotype keyboard is used, but its
product is a punched electronic tape. This tape is fed into a machine
which produces either film or sensitized paper containing an undevel-
oped form of type. When the film or sensitized paper is developed
and printed, the result is similar to an ordinary photograph, except
that instead of a picture of some object it is a picture of type. The
page is then assembled by pasting the type, photographs, and illus-
trations in their appropriate places and the entire sheet is sent to the
photoengraving department for the making of metal plates to be
placed on the presses.
Upon introduction of the new process, the Employer assigned all
the work connected with it to members of the Typographers. Aside
from the keyboard and other traditional composing room work, this
work included the darkroom tasks of developing the film and sensi-
tized paper and printing of what was called in the record "velox"
prints. The Guild protested, claiming that under its contract with
the Employer photographers in the editorial department should have
been assigned the darkroom work. When no agreement could be
reached concerning this controversy, the Guild filed a grievance and
carried its complaint to arbitration, in accordance with the provisions
of its contract with the Employer.
The arbitrator held that the Guild contract required the Employer
to assign the darkroom work to photographers; but he made clear
that because the Typographers was not a party to the arbitration, he
was not passing upon rights arising out of its contract with the
Employer.
PHILADELPHIA TYPOGRAPHICAL UNION, LOCAL NO. 2 39
Shortly after the arbitrator rendered his award, John Burke, presi-
dent of the Typographers, wrote a letter to James Schell, chairman of
its Philadelphia Inquirer unit, which stated, in part, as follows :
Through you, I wish to advise our members, performing
pasteup and other duties in the photo-composition room, to refuse
to process the production of the dark room if and when the dark
room work is assigned to other than members of the Philadelphia
Typographical Union.
The letter requested that it be posted in the photocomposition room
and it was actually posted on the bulletin board where members of the
Typographers could see it. , A copy was sent to Stewart Hooker, the
Employer's director of personnel and labor relations. The Employer
then filed a charge against the Typographers, alleging that the posting
of the above letter constituted a violation of Section 8 (b) (4) (D), and
subsequently the Guild filed similar charges against the Typographers.
The Employer has never reassigned the work to members of the Guild
and members of the Typographers were still doing the disputed work
at the time of the hearing.
B. Contentions of the parties
The Employer contends that its assignment of the work to em-
ployees represented by the Typographers is proper on the ground that
photocomposition is an integrated process, all parts of which should be
performed by employees represented by the same union. It further
urges that as photocomposition replaces or substitutes for the earlier
"hot metal" processes, those employees who previously worked on the
old process are now entitled to the new work. The Employer argues
that it has committed itself by contract with the Typographers to give
the work to its members and that the practice in the newspaper
industry elsewhere in the country has been to give darkroom work in
the photocomposition process to members of ITU locals, rather than
to members of any other union.
In contending that its members are entitled to the disputed work,
the Typographers agrees with the above arguments presented by the
Employer and contends further that by operating schools to train
its members in the photocomposition process, it has provided them
with the requisite skills to perform the work. It .also relies on the
language in its International constitution in support of its claim.
The Guild argues that its members are already trained to do the
darkroom work, since it is similar to the work which they normally
perform. It points out that the Employer has for years used Guild-
represented photographers to do the darkroom work in connection
with advertising matter and that this darkroom work is exactly 'the
type of work that is involved herein. It urges that .its contract with
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Employer has been interpreted by an arbitrator as entitling its
members to the disputed work. It denies that assigning a Guild
photographer to the photocomposition darkroom would disrupt the
composing room operation or impair its efficiency.
The Photo Engravers contends that the portion of the disputed
work which involves making "velox" prints is properly within its
jurisdiction and relies upon a provision which has been in its con-
tracts with the Employer at least since 1939. The Photo Engravers
likewise claims that the language of its International constitution
indicates that its members are entitled to the disputed work.
C. Applicability of the statute
Section 10(k) of the Act empowers the Board to hear and deter-
mine the dispute out of which a Section 8(b) (4) (D) charge has
arisen. Before making a determination of the dispute, however, the
Board is required to find there is reasonable cause to believe that Sec-
tion 8(b) (4) (D) has been violated.
The record herein shows that both the Guild and the Typographers
claimed that their members were entitled to the work in dispute, that
the Employer assigned the work to employees represented by the
Typographers, that the Guild sought and obtained an arbitration
award declaring that its members were entitled to the work, where-
upon the Typographers announced to its members that they were
expected to refuse to "process the production of the darkroom if and
when the darkroom work is assigned to other than members of the
Philadelphia Typographical Union." The Typographers would be in
a position to implement this order since, in the normal course of the
Employer's operation, they are called upon to perform pasteup and
other work on the material produced in the darkroom, regardless of
which union's members perform the disputed work.
We find, therefore, on the entire record, that there is reasonable
cause to believe that a violation of Section 8(b) (4) (i) (D) has oc-
curred, and that the dispute is properly before the Board for deter-
mination under Section 10 (k) of the Act.'
D. Merits of the dispute
In order to determine which of the contending groups of employees
is entitled to the work , we shall examine first those factors which we
r As noted, members of the Typographers are currently assigned the disputed darkroom
work. However, there is an outstanding arbitration award holding that Guild members
are entitled to this work, thus substantiating the apprehension of the Typographers that
a reassignment of the work may occur. Accordingly , although the Typographers is cur-
rently assigned the darkroom work, we find that there is a dispute over such work which
is properly before the Board under Section 10 ( k). International Association of Machin-
ists, Local Lodge 681 (American Radiator and Standard Sanitary Corporation), 137
NLRB 1524 , footnote 6. See also Stamford Printing Pressmen and Assistants' Union
Local # 317 (The O'Brien Suburban Press. Inc.). 137 NLRB 1758.
PHILADELPHIA TYPOGRAPHICAL UNION, LOCAL NO. 2 41
have announced and applied in numerous prior jurisdictional dispute
cases.6
Collective-bargaining agreements and union constitutions: The
record shows that the Employer has a collective-bargaining agree-
ment with each of the three unions claiming the work herein. The
language of each of these contracts may be construed to award the
disputed work to members of the respective unions, and, in addition,
the Guild contract has been so interpreted by an arbitrator? Sim-
ilarly, each of the three unions has language in its International con-
stitution which supports its claim to the disputed work. In view of
the foregoing, we are unable to give determinative weight to the col-
lective-bargaining agreements or to the union constitutions.
Skills and work involved: The record shows that the members of
the Typographers assigned by the Employer to perform the dark-
room work are composing room employees who have been specially
trained at one of a chain of ITU schools set up to teach its members
the skills necessary to perform the darkroom work in the photo-
composition process. The record further shows that both Guild
photographers and members of the Photo Engravers are normally
engaged in operation of photographic darkrooms and require a mini-
mum of instruction to learn the mechanics of the photocomposition
darkroom. Since all the contending employees thus possess the nec-
essary skills to perform the disputed work, this factor cannot assist
us in determining which of them is entitled to the work.
Custom and practice in the industry: In seeking to establish an
industry practice, Burke, president of the Typographers, testified
that he had personal knowledge of one New York City newspaper in
which Guild members did no darkroom work in the photocomposition
process and that he had been told by other ITU officials that the same
was true at four other newspapers in Boston 'and Washington. Alex-
ander Bevis, an international vice president of the ITU, testified that
in his nationwide travels he had seen only ITU members doing the
darkroom work in the photocomposition process. A member of the
Photo Engravers testified that making of "velox" prints in connec-
tion with photocomposition at two Washington, D.C., newspapers
was the exclusive task of photoengravers. In view of the limited and
inconclusive nature of this evidence, and the fact that there are 1,783
daily newspapers in the United States, we find that the record does
not adequately establish an industry practice regarding the disputed
work.
6lnternationai Association of Machinists, Lodge No . 174 , AFL-CIO (J. A. Jones Con-
struction Company ), 135 NLRB 1402.
It Neither the Typographers nor the Photo Engravers was a party to the arbitration
proceeding and the award did not purport to bind any union other than the Guild. For
these reasons, we have relied on the arbitration award only for the purpose of interpreting
the Guild contract as reserving the disputed work for Guild members.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer's past practice : Since photocomposition is a new process,
no employee of the Employer had ever been engaged in photo-
composition work until the events leading to this proceeding occurred,
even though some of the darkroom work under the old process bears
a resemblance to the new work and requires somewhat similar skills.
Thus, both photocomposition and "hot metal" processes involve the
making of "velox" prints.8 However, in photocomposition "velox"
prints are made in preparation for the assembling of the advertisement
by the pasteup method; while under the "hot metal" process, "velox"
prints are made largely in connection with advertising art work and
not for the purpose of composition. We find therefore that the Em-
ployer had not established a prior practice which is determinative of
this case.
This analysis makes it clear that the factors which we have usually
applied in jurisdictional disputes cannot aid us in deciding the instant
case.' We must therefore utilize what the Supreme Court, in the
CBS 10 case, referred to as our "experience and common sense" to re-
solve this dispute.
Basically, the difficulties created by the introduction of the photo-
composition process at the Philadelphia Inquirer are those which
result in all plants where extensive technological changes take place.
New types of machinery supplant those previously used and, in the
process, employees may lose their jobs, or may be required to learn
new skills. In the latter event, their retention may depend on whether
they are able to learn how to operate the new equipment. Employers,
employees, and unions all face important and delicate problems as a
result of these technological improvements.
In the newspaper industry, photocomposition and other photo-
graphic processes are gradually replacing "hot metal" methods of
composition. While such photographic techniques are presently being
used only for a relatively small portion of the composition work, the
record shows that they may one day replace all "hot metal" processes.
"Hot metal" and photographic methods fulfill the same composing
functions in the production of newspapers. However, photocomposi-
tion requires certain skills, such as photography, not previously needed
in the "hot metal" process. This change in composing room tech-
nology has threatened the jobs of members of the ITU who have long
8 Photocomposition also involves the developing of sensitized paper after it has come
from the Linofilm machine. In the "hot metal" process, there was no occasion to develop
sensitized linotype paper.
'In addition to those discussed above, we have in the past relied upon such factors as
prior Board certifications, area practices , agreements among unions , and joint board
determinations . Because the particular facts of the present case make such standards in-
applicable, we have not discussed them herein.
10 N.L.R.B. v. Radio & Television Broadcast Engineers Union , Local 1212, International
Brotherhood of Electrical Workers, AFL-CIO ( Columbia Broadcasting System), 364
U.S. 573.
PHILADELPHIA TYPOGRAPHICAL UNION, LOCAL NO. 2 43
performed the composing room work in the "hot metal" process, but,
at least until recently, have had no photographic skills.
The record reveals that the ITU long has recognized its responsibil-
ity to aid its members to keep pace with technological progress. A
number of years ago, the ITU established schools and instituted
courses to retrain its members in the new skills they would need to
retain their value to their employers as new processes were introduced.
Large sums of money have been spent for this purpose and ITU mem-
bers have devoted many hours to attending such classes. As soon as
it became apparent that new skills were required to perform photo-
composition work, the ITU, realizing that the jobs of its members
were at stake, added to the curriculum courses which would give them
such skills. As we have already noted, ITU members have been
trained at these schools to utilize the various photographic skills re-
quired by the photocomposition process.
As far as the Guild and the Photo Engravers are concerned, while
their members have done darkroom work before, they have never done
darkroom work in connection with composing the newspaper. If
such work were assigned to members of the Typographers, members
of the Guild and the Photo Engravers would not lose even 1 hour of
work they had previously done. On the other hand, as we have pointed
out, since members of the Typographers have always done composition
work, many of them might be affected to the point of losing their em-
ployment if they are not awarded the disputed darkroom work.
Recognizing that the jobs of large numbers of its composing room
employees were in jeopardy and appreciating the efforts of individual
employees and their union to fit themselves for service in the new tech-
nology, the Employer decided that its newspaper would, function best
if the new work were assigned to members of the Typographers. We
are asked by the Guild and the Photo Engravers to overturn that as-
signment, thereby taking away the employment of employees who are
members of the Typographers, and opening a new field to the em-
ployees who are members of the Guild or members of the Photo En-
gravers. This we decline to do.
We conclude that composing room employees represented by the
Typographers are entitled to the disputed work and shall determine
the dispute in their favor. In making this determination, we rely
particularly on the facts that photocomposition is a substitute for the
earlier "hot metal" process and that composing room employees rep-
resented by the Typographers have performed this "hot metal" work
in the past. In making this determination, we are assigning the con-
troverted work to composing room employees represented by the
Typographers, and not to the Typographers or its members.ii
n There are no readymade answers to the solution of jurisdictional disputes. The
Supreme Court in the CBS case (N.L.R.B. v. Radio and Television Broadcast Engineers
Union, Local 1212), supra, acknowledged that there are no standards to govern jurisdic-
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF DISPUTE
Upon the basis of the foregoing and the entire record in the case,
the Board makes the following Determination of Dispute pursuant
to Section 10 (k) of the Act :
1. Composing room employees of the Philadelphia Inquirer Di-
vision of Triangle Publications, Inc., currently represented by Phila-
delphia Typographical Union, Local No. 2, are entitled to perform
the following work :
Operation of the darkroom in connection with Philadelphia In-
quirer's photocomposition process at its newspaper plant in
Philadelphia, Pennsylvania.
MEMBER RODGERS, concurring :
I agree with the result reached in this case, and with much that
has been said in behalf of that result. However, where, as here, there
appears to be some validity to the claims advanced by all contending
parties, I would accord substantial, if not decisive, weight to the
Employer's assignment of the disputed work, and would upset such
assignment only in the face of circumstances which virtually compel
a contrary result.
MEMBER LEEDOM, dissenting :
Unlike my colleagues of the majority, I would award the disputed
work to the editorial department photographers represented by the
Guild. In awarding this work to the composing room employees rep-
tional dispute determinations under Section 10 (k) of the Act, but expressed confidence
that "Experience and common sense will supply the grounds for the performance of this
job which iCongress has assigned to the Board ." ( Id. at p. 583 .) In its initial decision
outlining the policies to be followed In making jurisdictional determinations, the Board
unanimously said in Machinists, Lodge No . 1148 (J. A. Jones Construction Company),
supra:
At this beginning stage in making jurisdictional awards as required by the
[Supreme ] Court, the Board cannot and will not formulate general rules for making
them. Each case will have to be decided on its own facts . The Board will consider
all relevant factors in determining who is entitled to the work in dispute . . . . The
Board cannot at this time establish the weight to be given the various factors. Every
decision will have to be an act of judgment based on common sense and experience
rather than on precedent . [Emphasis supplied.]
when, therefore , Member Leedom in his dissent criticizes the majority for considering
"new factors" in disposing of this jurisdictional dispute, he overlooks the Board 's posi-
tion that there are no fixed factors to be used in determining such disputes. He also
overlooks the fact that in the present case the Board is confronted with a new type of
jurisdictional dispute situation , and that even if precedents should be considered con-
trolling, there are none. Nor do we believe , as does Member Leedom, that controlling
significance should be given to the fact that at the time the photocomposition equipment
was placed in the plant , members oft he Typographers did not have the skills necessary
to do darkroom work. More pertinent is the circumstance that installation of the equip-
ment took several months and that when its use did begin , composing room employees
were as qualified as photographers to do darkroom work. Would a different determination
be warranted if the Employer had refrained from purchasing the new equipment until
after members of Typographers had acquired the necessary skills to use it? For all the
reasons set forth in our decision above, we believe that the disputed work should properly
be assigned to composing room employees.
PHILADELPHIA TYPOGRAPHICAL UNION, LOCAL NO. 2 45
.resented by the Typographers, it seems to me my colleagues have over-
looked those factors which the Board has uniformly applied in the
numerous jurisdictional dispute cases since the Supreme Court deci-
sion in the CBS case," and have relied, instead, on two novel factors
without precedent in Section 10(k) cases, in addition to the Em-
ployer's assignment.
If the majority had followed the approach of prior cases, in which
the Board relied on such factors as (1) the skills and work involved;
(2) Employer's past practice; and (3) similarity to prior processes,
the conclusion would be inescapable that the disputed work should
be awarded to the editorial department photographers. Thus, as to
the skills and work involved, the record shows that photographers
represented by the Guild have traditionally done darkroom work for
the Employer. It shows further that members of the Typographers
assigned by the Employer to perform darkroom work in connection
with the photocomposition process are composing room employees
whose training and skills are in the "hot metal" process and that, in
order to perform the disputed work, the latter employees must be
specially trained. As the majority admits, neither Guild photogra-
phers nor members of the Photo Engravers require special training.
In assigning the disputed work to typographical employees, the
majority relies on the fact that facilities exist for training linotype
operators to become darkroom operators. By virtue of such reasoning,
the skills test, which the Board has applied in Section 10(k) cases,
becomes essentially meaningless, since it is always true that any em-
ployee who does not have the skills to perform a job can attend a
school and learn them. The majority inquires whether a different
result would be warranted if members of the Typographers had
learned their photographic skills before the Employer purchased the
new equipment. The majority misconceives my position. The key
question, it seems to me, is not on what date the employees learned
the skills required to perform the disputed work, but rather, the
circumstances prevailing at the time of such acquisition. Thus, what
is significant here is that Guild photographers, for a long period of
time, had possessed the skills necessary to perform the darkroom work,
while members of the Typographers were specifically trained to do
darkroom work so that they would be able to operate the new equip-
ment. This factor clearly favors award of the work to photographers
represented by the Guild.
With respect to the Employer's past practice, it is established that
darkroom work, substantially similar to that in dispute, has been
performed in the Employer's plant for many years by photographers.
12 N.L.R.B. v. Radio and Television Broadcast Engineers Union, Local 1212, Interna-
tional Brotherhood of Electrical Workers, APL -CIO (Columbia Broadcasting System),
supra.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No member of the Typographers had ever been assigned to do dark-
room work.
As to the similarity to prior processes, under the old "hot metal"
process, photographers did darkroom work in connection with the
handling of advertising matter. The disputed work involves dark-
room work connected with the production of advertising matter under
the photocomposition process. Thus, the disputed work has the great-
est similarity to the darkroom work in the "hot metal" process, which
had been performed by photographers. Both operations require the
development of film and sensitized paper, the production of negatives
from such film, the printing of positives, enlargement and reduction
of photographs, and the handling of cameras and of other photo-
graphic equipment.13
Disregarding those factors customarily used to determine jurisdic-
tional disputes, the majority has ventured into new territory and
fashioned two new factors which it says should be utilized to decide
this dispute.14 The majority relies on a "substitution-of-function" test
and on a "loss-of-jobs" test in support of its award to members of the
Typographers. In my view, neither test affords sufficient basis for
the majority determination herein. The fact that photocomposition
replaces the "hot metal" function is no reason to award the new work
which requires new skills to those employees who previously per-
formed the old work requiring different skills, even though both
processes are to serve the same function. I know of no case, and the
majority cites none, in which the Board has relied on this "substitution-
of-function" argument in deciding a jurisdictional dispute.15 The
implications of such an approach are worth considering. Thus, for
example, were glass to replace bricks in the construction industry,
bricklayers rather than glass workers would be entitled to the work
involved, a result which I doubt the majority would wish to reach.
Nor do I find real merit in the majority's speculation that members of
the Typographers would lose work. if darkroom jobs were assigned
to photographers, while members of the Guild would lose no jobs if
a contrary result were reached. In the first place, the record does not
show, and we have no way of knowing, what kind of reorganization of
13 While it is true that members of the Photo Engravers also have the necessary skills
and have performed darkroom work in the past , their darkroom work has been mainly in
connection with the photoengraving process. Guild photographers, however, have done
darkroom work on a wide variety of -materials , including advertising matter such as is in
issue here.
14 The majority states, without explanation , that the instant case involves "a new type
of jurisdictional dispute." In my view , its novelty lies solely in the fact that the majority
refused to apply established criteria to the determination of the dispute.
is Cf. St . Louis Typographical Union No. 8, affiliated with International Typographical
Union, AFL-CIO (Bejea Printing Company ), 141 NLRB 1127 , where the Board awarded
certain disputed work involving the use of cameras producing type from text materials
to members of the Pressmen 's Union rather than to members of the Typographers, even
though employees represented by the Typographers had theretofore performed "hot-metal"
work which served the same function.
LOCAL 423, UNITED RUBBER, CORK, LINOLEUM, ETC. 47
the Employer's plant will take place due to the introduction of new
photocomposition processes, and what effect such reorganization will
have on job opportunities for employees. In any event, there is no
precedent supporting a consideration of socioeconomic data of this
type in determining Section 10(k) disputes.
I do not disagree that the Employer's assignment of disputed work
to members of a particular union is a factor militating in favor of
awarding the work to these employees and I have heretofore given
substantial weight to this factor. However, all the other relevant fac-
tors dictate, as I have indicated, that photographers should be as-
signed the disputed work. Consequently, the majority has, in effect,
given to the Employer's assignment controlling weight in deciding the
outcome of this jurisdictional dispute. This is a result which the
Board has repeatedly stated it would not permit," and which is con-
trary to the decision in CBS, supra.
For the foregoing reasons, I would find that photographers in the
editorial department represented by the Guild are entitled to perform
the disputed work and that the Respondent Typographers was not and
is not entitled, by means proscribed in Section 8 (b) (4) (i) (D), to force
or require the Employer to assign the disputed work to its members
rather than to the photographers.
MEMBER BROWN, dissenting :
While not endorsing the entirety of Member Leedom's dissenting
opinion, I do agree with his conclusion that the disputed work be
assigned to the employees represented by the Guild.
10 See, for example, Local Union No. 38, International Brotherhood of Electrical Work-
ers, AFL-CIO (Cleveland Electric Illuminating Company), 137 NLRB 1719.
Local 423, United Rubber, Cork , Linoleum and Plastic Workers
of America, AFL-CIO and Pipe Fitters' Local No. 522, United
Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada,
AFL-CIO and American Synthetic Rubber Corporation;
American Rubber and Chemical Company. Cases Nos. 9-CD-
61-1 and 9-CD-61-2. April 16, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10 (k) of the National Labor
Relations Act, following the filing of charges under Section
8(b) (4) (D) of the Act. A hearing was held before Donald G.
Logsdon, hearing officer, on November 7 to 9, 1962. All parties who
appeared at the hearing were afforded full opportunity to be heard,
142 NLRB No. 7.