The Denver Photo-Engravers' Union No. 18, Etc.

National Labor Relations Board - Board Decisions

Jun 18, 1964

147 N.L.R.B. 533 (N.L.R.B. 1964)

THE DENVER-PHOTO-ENGRAVERS' UNION NO. 18, ETC.. 533
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, -.defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Mich-
igan, Telephone No. 963-9330, if they have any question concerning
this notice or compliance with its provisions.
The Denver Photo -Engravers' Union No . 18, International Photo-
Engravers Union of North America , AFL-CIO and The Denver
Publishing Company. Case No. 27-CD-39. June 18,1964
DECISION AND ORDER
On April 22, 1964, Trial Examiner Fannie M. Boyls issued her De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
violative of Section 8(b) (4) (ii) (D) of the Act, and recommending
that it cease and desist therefrom and take certain affirmative action,
as recommended in the attached Trial 'Examiner's Decision. There-
after, Respondent filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
exceptions and brief, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, The
Denver Photo-Engravers' Union No. 18, International Photo-
Engravers Union of North America, AFL-CIO, its officers, agents,
representatives, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
1 Respondent 's exceptions relate to findings originally made in the Board 's Decision and
Determination of Dispute issued on November 7, 1963 ( 144 NLRB 1408 ). We have ex-
amined these exceptions and find no warrant therein for a reconsideration of our determi-
nation in the earlier proceeding or a dismissal of this complaint as urged by Respondent.
147 NLRB No. 67.
534 • DECISIONS OF 'NATIONAL LABOR RELATIONS.. BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Following the filing of a charge on December 20 and an amended charge on
December 21, 1962, by The Denver Publishing Company, herein called the Em-
ployer, alleging that The Denver Photo-Engravers ' Union No. 18, International
Photo-Engravers Union of North America, AFL-CIO, herein called the Respondent,
had violated Section 8 (b) (4) (ii) (D) of the Act in connection with a work assign-
ment jurisdictional dispute , the Board , pursuant to Section 10(k) of the National
Labor Relations Act, as amended , conducted a hearing at Denver , Colorado, on
February 26 and 27, 1963, to determine the dispute.
On November 7, 1963, the Board handed down its Decision and Determination of
Dispute which is reported in 144 NLRB 1408. Preliminarily , it found, on the basis
of undisputed facts, "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 under Section 10 (k) of the Act." It then proceeded to determine
the merits of the dispute and found that typographers employed by the Employer,
who are represented by Denver Typographical Union, Local No. 49, International
Typographical Union, AFL-CIO, herein called the ITU, are entitled to perform
the disputed work consisting of ",the operation of the Kenro camera and the work
processes involved in the use of that camera to enlarge or reduce the size of photo-
positives made by the Fotosetter , to make type reverses , to make screened Velox
prints, to make negatives for paper offset plates , and to produce paper offset plates,"
and that Respondent is not entitled by means proscribed by Section 8(b)(4)(D) of
the Act to force or require the Employer to assign such work to the photoengravers,
who are represented by Respondent.
Thereafter, by letter dated November 14, 1963, Respondent and its International
notified the Board 's Regional Director that they did not concur in the findings, con-
clusions, and determinations of the Board; that they believed the Board 's determina-
tion to be unsupported by the record and without reasonable warrant in the law; that
they would therefore not act in accordance therewith and would "take such action as
they deem best necessary to require the Employer to assign the disputed work to the
members represented by them . . "
Accordingly, the Board , on the basis of the charges previously filed, issued a com-
plaint on December 17, 1963, alleging that Respondent , on specified dates in
October, November, and December 1962, by threatening to picket the Employer and
refusing to work or permit its members to work on copy prepared by employees other
than its members , had threatened , coerced , and restrained the Employer, an object
being to force or require the Employer to assign the disputed work to employees who
were members of or represented by Respondent rather than to employees who were
members of or represented by the ITU, or who are not members of or represented
by Respondent , and that Respondent had thereby violated Section 8(b) (4) (ii) (D)
of the Act. Respondent filed an answer denying that it had engaged in the unfair
labor practice alleged . A hearing on said complaint was held before Trial Examiner
Fannie M . Boyls on January 27, 1964, at Denver, Colorado.
. At the hearing, the General Counsel introduced in evidence, without objection, the
pleadings , the Board's Decision and Determination of Dispute, Respondent 's letter
of November 14, 1963, and the record , including the transcript of testimony in the
underlying Section 10 (k) proceeding . It was agreed that the transcript of testimony
presented no credibility issues. Respondent introduced , without objection , what it
described as "true ' and correct copies" of the current contract between Respondent
and the Employer , effective from October 2, 1962, to October 1, 1964, for the pur-
pose of showing the correct language of article II thereof entitled "Jurisdiction"-
the language in one part being slightly different from that in the draft of contract
covering the same period which was introduced in evidence in the Section 10(k)
proceeding as Employer's Exhibit No. 2-g. After the conclusion of the hearing, the
General Counsel and Respondent submitted -briefs which I have carefully considered.
Upon the record thus made, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Upon the basis of the facts alleged in the complaint, admitted by Respondent,
and found by the Board in the Section 10(k) proceeding-which need not here be
repeated-it is found that the Employer is engaged in commerce within the meaning
of the Act , and that it will effectuate the policies of the Act to assert jurisdiction
herein.
THE DENVER PHOTO-ENGRAVERS' UNION NO. 181 ETC . 535
H. THE LABOR ORGANIZATIONS INVOLVED
As found by the Board in the Section 10(k) proceeding and admitted by Respond-
ent, both Respondent and the ITU are labor organizations within the meaning of
Section 2 (5) of the Act.
III. SCOPE OF THE ISSUES TO BE DETERMINED
In proceedings pursuant to Section 10(k) of the Act, the Board must determine,
at the outset, whether there exists reasonable cause to believe that a violation of
Section 8(b) (4) (D) of the Act has occurred. If it satisfies itself that such reason-
able cause does exist and that the parties have not settled or agreed upon a method
for settling their dispute, then it must, under the statute, proceed to determine the
dispute. If, after the Board issues its Decision and Determination of Dispute, the
parties do not comply with the Board's determination, a complaint is issued upon
the unfair labor practice charge. Section 102.91 of the National Labor Relations
Board Rules and Regulations, and Section 101.36 of Statements of Procedure,
Series 8, as amended.
It appears settled by a long line of Board decisions, and with court approval, that
at least in the absence of material newly discovered or previously unavailable
evidence,' an award of disputed work made by the Board in a Decision and Deter-
mination of Dispute is not open to review by a Trial Examiner in a proceeding on
a Section 8(b)(4)(D) complaint.2 Respondent, though not accepting this thesis,
has cited no authority to the contrary, and I am aware of none. Accordingly, the
findings of the Board as to who is entitled to perform the work in controversy are
adopted as a part of the findings herein.
The only issues before the Trial Examiner in this case, therefore, are whether the
parties have complied with the Board's determination and whether the Respondent
Union has violated Section 8(b) (4) (ii) (D) of the Act, that is, whether it has
threatened, coerced, or restrained the Employer, a purpose being to force or require it
to assign the disputed work to employees represented by Respondent rather than to
employees represented by the ITU. The latter issue, although considered prelimi-
narily in the Section 10(k) proceeding, may be tried de novo in the unfair labor
practice proceeding because the standard of proof as to the restraint and coercion
aspects in the unfair labor practice proceeding is not "reasonable cause to believe,"
as in the Section 10(k) proceeding, but "preponderance of the evidence," as required
in any other unfair labor practice case.
' As already noted, Respondent in the unfair labor practice hearing introduced, without
objection, a copy of a contract (effective between October 2, 1962, and October 1, 1964,
but apparently signed in March 1963, subsequent to the Section 10(k) hearing) between
Respondent and a group of publishers, including the Employer, for the asserted purpose of
showing the correct language in the "Jurisdiction" section of the contract, apparently to
distinguish it from the language of a draft copy introduced in the Section 10(k) proceed-
ing. A comparison of the two copies shows that the "Jurisdiction" sections are identical
except that the draft copy in the third paragraph refers to the method "past and presently
practiced" whereas the copy introduced in this proceeding refers to the method "as pres-
ently practiced." Neither at the hearing nor in its brief has Respondent contended that
this particular contract is material to any issue in this case, and I perceive no such
materiality.
2N.L.R.B. v. Local 450, International Union of Operating Engineers (Sline Industrial
Painters), 275 F. 2d 408, 413 (C.A. 5), enfg. 123 NLRB 1, 6; Local 1291, International
Longshoremen's Association, etc. (Pennsylvania Sugar Division, National Sugar Refining
Company), 142 NLRB 257; Chicago Typographical Union No. 16, AFL-CIO (Central
Typesetting and Electrotyping Company), 138 NLRB 231, 236, and cases cited therein;
Local 1291, International Longshoremen's Association (Northern Metal Company), 142
NLRB 1451 ; Local 46, Wood, Wire and Metal Lathers, AFL-CIO, et al. (Precrete, Inc.),
140 NLRB 1, 6; International Typographical Union, AFL-CIO, et al. (Worcester Telegram
Publishing Company, Inc.), 125 NLRB 759, 761. Cf NL.R.B. v. Local 450 International
Union of Operating Engineers (17mote Electrical Co.), 275 F. 2d 420, 421 (CA. 5),
wherein the court, rejecting the union's contention that the Board was required in the
complaint hearing to reopen the question whether there had been an adjustment of the
dispute prior to the Section 10(k) hearing, said: "We agree with the Board that this
rule of the Board is analogous to the rule that the Board is not required to relitigate in
unfair labor practice proceedings determinations made in representation proceedings. Cf.
Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 158, 161 11
536 DECISIONS OF NATIONAL LABOR RELATIONS` BOARD
IV. RESPONDENT 'S FAILURE TO COMPLY WITH THE BOARD'S
DETERMINATION OF DISPUTE
In its Decision and Determination of Dispute , issued on November 7, 1963, the
Board directed Respondent to notify the Regional Director for the Twenty-seventh
Region, in writing, within 10 days from the date of its determination whether Re-
spondent would refrain from forcing or requiring the Employer by means proscribed
by Section 8(b) (4) (D ) to assign the work in dispute to photoengravers rather than
to typographers . Respondent , as already noted, informed the Regional Director by.
letter dated November 14, that it would not accept the Board 's determination and
would take such action as it deemed necessary to require the Employer to assign
the disputed work to employees represented by Respondent. I find that Respondent
has failed to comply with the Board's Determination of Dispute and that the unfair
labor practice case is properly before me for a decision . International Typographi-
cal Union, AFL-CIO and Members of its Executive Council, International Typo-
graphical Union, AFL-CIO, Local 165, and its Scale Committee (Worcester
Telegram Publishing Company, Inc.), 125 NLRB 759, 760-761.
V. THE UNFAIR LABOR PRACTICE
The record shows that in August 1962, the employer notified both Respondent and
the ITU ,of its intention to assign the work in controversy involving the operation of
the Kenro camera to the typographers. Respondent thereafter asserted the right
of employees represented by it to perform the work. Through its attorney, Charles
A. Graham, it told the Employer's personnel manager, Edward Estlow, about Octo-
ber 15, 1962, that Respondent "would throw up a picket line" if necessary to protect
its claim to the work. In a letter dated October 25 , 1962, to the Employer, Re-
spondent, also through its counsel , Graham , again asserted its claim under "its con-
tract and recognized jurisdiction " to the disputed work and stated that it was
"prepared to take all action necessary to protect said contract and jurisdiction."
Shortly thereafter, about November 1 or 2 , 1962 , in a conversation between Fred
M. Winner, counsel for the Employer , and Graham , when Winner informed
Graham that the Employer was adhering to its decision with respect to the assign-
ment of the work in controversy , Graham replied to the effect that "in that event,
I guess we'll have to have a strike."
On November 2, when ITU members produced the first work on the new equip-
ment involved in the dispute, Respondent 's business agent , Norman Paradis, an-
nounced that the photoengravers , who were represented by Respondent , were not
going to handle the copy. Respondent's members, including its president, upon this
occasion engaged in a work stoppage of about 10 or 15 minutes '. duration.
Thereafter between December 13 and 19 , in separate conversations with the Em-
ployer's personnel manager, Estlow , and its counsel , Winner, Respondent 's counsel,
Graham , reiterated Respondent 's position that there would be a picket line or strike
by Respondent , if necessary, to protect its claim to jurisdiction over the work in
controversy.
On the basis of the above uncontroverted facts, I find that Respondent on or about
October 15, 1962 , and thereafter , threatened a strike or a picket line at the Employer's
premises, and on November 2, engaged in a work stoppage, an object of all this
conduct being to force or require the Employer to assign the work in dispute to
photogravers , who are represented by it , rather than to typographers , who are
represented by the ITU, despite the fact that the Employer was not failing to con-
form to any order or certification of the Board determining the bargaining repre-
sentative for employees performing such work . I further find that by such conduct
Respondent violated Section 8(b) (4) (ii ) (D) of the Act.
CONCLUSIONS OF LAW
1. By threatening , coercing , and restraining the Employer , an object . being to
force or require it to assign the work of operating the Kenro camera in its com-
posing room to photoengravers , who are represented by Respondent , rather than to
typographers , who are represented by the ITU, Respondent has violated Section
8(b) (4) (ii) (D) of the Act.
2. The aforesaid unfair labor practice affects commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
V. THE REMEDY
Having found that Respondent has engaged in an unfair labor practice within
the meaning of Section 8(b) (4) (ii ) (D) of the Act, my Recommended Order will
require it to cease and desist therefrom and to take the conventional type of
affirmative action designed to remedy an unfair labor practice of this nature.
THE DENVER PHOTO-ENGRAVERS' UNION NO. 18, ETC. 537
Upon the foregoing findings of fact, conclusions of law, and the, entire record in
this case, and pursuant to Section 10(c) of the National Labor Relations Act; as
amended, I hereby issue the following:
RECOMMENDED ORDER
Respondent, The Denver Photo-Engravers' Union No. 18, International Photo-
Engravers Union of North America, AFL-CIO, its officers, agents, representatives,
successors, and assigns, shall:
1. Cease and desist from threatening, coercing, or restraining The Denver Pub-
lisihing Company where an object thereof is to force or require said Employer to
assign the work of operating the Kenro camera in said Employer's composing room
to photoengravers, who are represented by Respondent, rather than to typographers,
who are represented by Denver Typographical Union, Local No. 49, International
Typographical Union, AFL-CIO.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Post at its business office and meeting hall in Denver, Colorado, copies of the
attached notice marked "Appendix." 3 Copies of said notice, to be furnished by
the Regional Director for the Twenty-seventh Region, shall, after being duly signed
by an authorized representative of Respondent; be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to its members are cus-
tomarily posted. Reasonable steps shall be taken by Respondent to insure that
said notices are notaltered, defaced; or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the Regional Director for
the Twenty-seventh Region for posting by The Denver Publishing Company, it being
willing, at all locations where notices to its employees are customarily posted.
(c) Notify said Regional Director, in writing, within 20 days from the date
hereof, what steps Respondent has taken to comply herewith 4
3 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States 'Court of Appeals, the words "a Decree of the United States
Court of Appeals; Enforcing an Order" shall be substituted for the words "a Decision
and Order."
4 In the event that this Recommended Order. be adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for the Twenty-seventh Region,
in writing, within 10 days from the date of this Order; what steps the Respondent has
taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF THE DENVER PHOTO-ENGRAVERS' UNION No. 18,
INTERNATIONAL PHOTO-ENGRAVERS UNION OF NORTH AMERICA, -AFL-CIO, AND
TO ALL EMPLOYEES OF THE DENVER PUBLISHING COMPANY
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended; we hereby give notice, that:
WE WILL NOT threaten, coerce, or restrain The Denver Publishing Company
where an object thereof is to force or require The Denver Publishing Company
to assign the work of operating the Kenro camerain its composing room to photo-
engravers, who are represented by us, rather than to typographers, who are
represented by Denver Typographical Union, Local No. 49, International
Typographical Union, AFL-CIO.
THE DENVER PHOTO-ENGRAVERS' UNION No. 18,
INTERNATIONAL PHOTO-ENGRAVERS UNION OF
NORTH AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board 's Regional Office, 609 Rail-
way Exchange Building, 17th and Champa Streets, Denver , Colorado, Telephone
No. 534-4151 , Extension 513, if they have any questions concerning this notice or
compliance with its provisions.
Trent Tube Company , Subsidiary of Crucible Steel Company of
America and United Steelworkers of America , AFL-CIO, Peti-
tioner. Case No. 13-RC-9279. June 19, 1964
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
Pursuant to the provisions of a stipulation for certification upon
consent election, an election by secret ballot was conducted by the Re-
gional Director for the Thirteenth Region on April 25, 1963, among
the employees in the stipulated unit. After the election the Regional
Director served upon the parties a tally of ballots which showed that of
approximately 235 eligible voters, 229 votes were cast, of which 104
were for, and 12 were against, the Petitioner, 1 ballot was void, and
1 ballot was challenged. Thereafter, the Petitioner filed timely objec-
tions to conduct affecting the results of the election.
In accordance with the Board's Rules and Regulations, the Re-
gional Director conducted an investigation and, on June 10, 1963,
issued and duly served upon the parties his report on objections, in
which he found merit in the Petitioner's objection No. 7 and recom-
mended that the election. be set aside and a new election held.' The
Employer filed timely exceptions to the Regional Director's report and
recommendations.
Upon the entire record in this case, 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 Petitioner is a labor organization claiming to represent cer-
tain employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that all production and
maintenance employees employed at the Employer's East Troy, Wis-
consin, plant, including shop clerical employees and laboratory tech-
nicians, but excluding office clerical employees, guards, professional
1 In the absence of exceptions thereto, we shall adopt pro forma the Regional Director's
recommendation that objections Nos. 1 through 6 be overruled.
147 NLRB No. 60.