The A. S. Abell Co.

National Labor Relations Board - Board Decisions

Jun 7, 1976

224 N.L.R.B. 425 (N.L.R.B. 1976)

THE A S ABELL COMPANY 425
The A. S Abell Company and Baltimore Typographi-
cal Union No 12, ITU and Washington-Baltimore
Newspaper Guild , Local 35, AFL-CIO-CLC. Case
5-RM-786
June 7, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Albert W
Palewicz At the close of the hearing, and pursuant to
Section 102 67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
and by direction of the Regional Director for Region
5, this proceeding was transferred to the Board for
Decision Thereafter, the parties filed briefs in sup-
port of their respective positions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error They are hereby affirmed
Upon the entire record in this proceeding, the Board
finds
1 The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein
2 The Baltimore Typographical Union No 12,
hereafter called the BTU, and the Washington-Balti-
more Newspaper Guild, Local 35, AFL-CIO-CLC,
hereafter called the Guild, are labor organizations
within the meaning of the Act
3 No question affecting commerce exists concern-
ing the representation of employees of the Petitioner
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act
The Petitioner, A S Abell Company, is a Mary-
land corporation and maintains its principal place of
business in Baltimore, Maryland, where it is engaged
in the publication of daily and Sunday newspapers
called The Sun, The Evening Sun, and The Sunday
Sun During the preceding 12 months, a representa-
tive period, Petitioner had gross revenues exceeding
$200,000 and regularly printed advertisements of
products which are nationally advertised and sold,
published nationally syndicated articles and news
stories, and shipped newspapers to points outside the
State of Maryland
The Guild is the certified collective-bargaining
representative of approximately 700 of Petitioner's
employees The employees represented by the Guild
are classified in either of two broad categories, com-
mercial or editorial employees The commercial clas-
sifications include electricians, mechanics, advertis-
ing personnel, circulation personnel, janitors, and
bookkeeping personnel The editorial employees in-
clude reporters, copy editors, library personnel, edi-
torial workers, cartoonist, and photographers The
Petitioner and the Guild have been parties to a num-
ber of collective-bargaining agreements and during
the period relevant herein were signatories to a cur-
rent contract
The BTU is the collective-bargaining representa-
tive of Petitioner's Typographical employees Peti-
tioner and the BTU also have had a number of col-
lective-bargaining agreements and during the
relevant period involved herein were party to a cur-
rent collective-bargaining agreement
The issue before the Board in the instant case has
its origins in a series of studies conducted by Peti-
tioner in 1972 to identify and apply new techniques
to improve its production operations The studies re-
sulted, in part, in the introduction in the spring of
1974 of new computer-orientated equipment This
equipment was physically located in both the editori-
al and composing rooms and eliminated certain time-
consuming operations between the writing of news
copy and the completion of operations in the com-
posing room In effect, this new equipment complete-
ly eliminated the "hot metal" process in the compos-
ing room
In the summer of 1974, Petitioner decided to de-
velop an in-house staff to maintain this new equip-
ment and in July 1974 began to hire employees The
Petitioner designated these employees as its Produc-
tion Systems Group and eventually hired a comple-
ment of six individuals Shortly after the hire of the
first individual in the Production Systems Group, the
Guild initiated a series of inquiries as to the status of
that group Eventually the Guild filed a grievance
claiming that the work being done by the Production
Systems Group was work that rightfully belonged to
employees represented by the Guild' In a similar but
separate procedure, the BTU filed a grievance with
the Petitioner claiming that the work being done by
the Production Systems Group belonged to employ-
ees represented by the BTU Petitioner, however, re-
fused to arbitrate the BTU's grievance, and thereaf-
ter in June 1975 the BTU filed suit against Petitioner
and the Guild in the United States District Court for
the District of Maryland seeking to compel tripartite
1 In January 1975 the dispute between Petitioner and the Guild was ar-
gued before an impartial arbitrator It appears that that arbitration proceed-
ing has been held in abeyance
224 NLRB No 63
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arbitration of Petitioner's assignment of the work to
the Production Systems Group 2 The Guild immedi-
ately agreed to participate in the tripartite arbitra-
tion, however, Petitioner claimed that such arbitra-
tion was inappropriate and that the action should be
dismissed
On November 7, 1975, Petitioner filed the RM pe-
tition involved herein and claimed that the Guild and
BTU had separately filed claims to represent its as-
sistant production managers in its Production Sys-
tems Group The Guild and BTU individually filed
responses claiming that the petition should be dis-
missed because they have not sought to represent
Petitioner's assistant production managers but have
merely claimed that, pursuant to their respective con-
tracts, the work in question belonged to members of
their respective Unions Both Unions also contend
that the petition should be dismissed because neither
Union has attempted to represent the petitioned-for
employees in the unit sought
Clearly if Petitioner is correct and the Unions are
seeking to represent employees doing particular
work, the controversy involves a representation ques-
tion within the meaning of the Act 3 On the other
hand, if the Unions' intentions are correct the con-
troversy is a work dispute and is not properly before
us In cases such as the instant one, "the blurred line
that often exists between work assignment disputes
and controversies over which of two or more unions
is the appropriate bargaining unit [is] often dif-
ficult to classify " 4 Therefore, where there is a dis-
pute concerning this type of controversy, we careful-
ly exarun° the record to determine what in fact is
ultimately being sought
In this case , the record reveals that at a very early
stage the Guild indicated its dissatisfaction with
Petitioner's creation of the Production Systems
Group and claimed that the electricians in the unit
represented by the Guild should be doing the mainte-
nance work on the new equipment In fact when the
Guild filed its grievance, it indicated it was arbitrat-
ing the "poslLion[s]" and not the individuals In a
similar manner, the grievance filed by the BTU
claimed that individuals within the Production Sys-
tems Grol?p "were performing work within our bar-
gaining unit" and that the performance of such work
by nonbargaining unit personnel was contrary to its
collective-bargaining agreement with Petitioner
Since the ultimate effect of the claims by both
2 Baltimore Typographical Union No 12 v A S Abell Company and Wash
inpton-Baltimore Newspaper Guild, Local 35, Civil No K-75-726
In response to an inquiry from the United States District Court for the
District of Maryland , the Regional Director suggested that the court hold
the matter pending before it in abeyance until resolution of the instant
representation matter
4 Carey v Westinghouse Corp, 375 U S 261, 268-269 (1964)
Unions is to dispute Petitioner's assignment of work,
we find no merit to the claim that either of the
Unions is seeking to represent the employees in the
Production Systems Group 5 In The Gas Service Com-
pany, 140 NLRB 445, 447 (1963), the Board stated
[W]ork assignment disputes are not properly
matters for consideration and resolution in a
representation proceeding As the Board has
said, its sole function in representation proceed-
ings is to ascertain and certify the name of the
bargaining representative, if any, that has been
designated by the employees in the appropriate
unit It is not the Board's responsibility in repre-
sentation proceedings to decide whether em-
ployees in the bargaining unit are entitled to do
any particular work or whether an employer has
properly reassigned work from employees in the
bargaining unit to other employees
Since the instant matter involves a work assignment
dispute and is not a proper subject for consideration
in a representation proceeding, we find that the peti-
tion fails to raise a representation question Accord-
ingly, we shall dismiss the petition 6
In dismissing the petition, we have not examined
the merits of the contentions made by the parties as
to whom the work should properly be assigned, nor
have we examined the question as to whether arbitra-
tion is in fact proper Our decision rests on the nar-
row ground that the instant petition has failed to
raise a representation matter'
ORDER
It is hereby ordered the petition in Case 5-RM-
786 be, and hereby is, dismissed
5 The record reveals that both Unions made a number of requests for the
disputed work Some of these requests were martfully and vaguely worded
and tend to "blur" the determination as to whether the Unions are seeking
a work assignment or are seeking to represent certain employees However,
based on our examination of the record as a whole , we are of the view that
both Unions were ultimately contesting Petitioner 's assignment of the dis
puted work
6 We further note that neither Union is willing to go to an election in the
unit sought in the petition The BTU has disclaimed any intention of desir-
ing to represent the assistant production managers in the unit sought by
Petitioner and has unequivocally indicated it would not go on the ballot if
the Board directed an election in that unit As to the Guild, the record fully
supports its claim that it has never requested and does not now presently
seek to represent the employees who are the subject of the petition in a
separate unit As there has been no request to represent the employees
sought in the petitioned-for separate unit , we find the petition has failed to
raise a question concerning representation within the meaning of Sec
9(c)(1) of the Act Accordingly, we shall dismiss the RM petition on the
additional basis that it fails to raise a question concerning representation
within the meaning of the Act See Woolwich, Inc, 185 NLRB 783 (1970),
Aerojet General Corporation 185 NLRB 795 (1970, Oyster Creek Division
The Dow Chemical Company 179 NLRB 719 (1969)
7 In that we are dismissing the petition we find it unnecessary to pass on
the unit issues raised by the parties