Baltimore Web Pressmen's Union No. 31

National Labor Relations Board - Board DecisionsSep 16, 1974

213 N.L.R.B. 274 (N.L.R.B. 1974)

274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baltimore Newspaper Web Pressmen's Union No. 31, Affiliated with International Printing & Graphics Communications Union of North America, AFL- CIO' and The A. S. Abell Company and Baltimore Mailers' Union No. 88 . Case 5-CD-205 Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED September 16, 1974 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by The A. S. Abell Company, herein called the Employer, alleging that the Baltimore Newspaper Web Pressmen's Union No. 31, affiliated with International Printing & Graphics Communica- tions Union of North America, AFL-CIO, herein called the Respondent, has violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer H. E. Lott on May 24 and June 25, 1974. The Employer, Respondent, and Baltimore Mailers' Union No. 88, herein called Mailers, ap- peared at the hearing and were afforded full opportu- nity to be heard, to examine and cross-examine witnesses , and to adduce evidence bearing on the is- sues . Thereafter, briefs were filed by the Employer and by the Mailers which have been duly considered. 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. rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The record discloses, the parties stipulated, and we find that The A. S. Abell Company is a Maryland corporation with its principal office located in Balti- more , Maryland, and that it is engaged in the business of publishing daily and weekly newspapers which are distributed in Maryland, District of Columbia, Dela- ware , Pennsylvania, and other States . During the past 6 months, and annually, the Employer did business in excess of $200,000, and subscribes to the major na- tional news services. Accordingly, we find that the 1 The name of the Respondent appears as amended at the hearing. The record shows, and we find, that both Respon- dent and the.Mailers exist for the purpose of repre- senting employees and members in matters of wages, hours of work, and other conditions of employment. Furthermore, both Unions have contracts with the Employer, and grievances have been processed under their respective contracts. Accordingly, we find that Respondent and the Mailers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts The Employer publishes the Baltimore Sun news- paper and includes in its Sunday edition a TV supple- ment called "TV Week." In August 1972, the Employer and the Respondent entered into discus- sions concerning the feasibility of installing and oper- ating a Goss Urbanite Offset Press to print the supplement at the Employer's premises. On January 5, 1973, a letter of understanding was signed by the Employer and the Respondent assigning the opera- tion of the press to the Respondent's members. The letter also assigned the work of removing the supple- ment from the press to two junior pressmen. On Sep- tember 2, 1973, the offset press was installed. Prior to the installation of the offset press, the TV supplement was produced by an outside contractor. The supple- ments were then brought to the Employer' s mailroom where they were trimmed and bound in magazine form by members of the Mailers, and inserted into the Sunday paper by mailers in the same manner as other supplements were inserted. The Goss press and its attachments print the sup- plement, trim it, and bind it in magazine form, deliv- ering out of the system a completed product. At the time of its original installation, a "Count-o-Veyor" was attached which counted and stacked the supple- ment in piles for removal and placement in baskets or on skids for delivery to the mailroom. Experiencing dissatisfaction with the Count-o-Veyor because of smearing of the books, the Employer's production department made substantial modifications to a sur- plus counter-stacker and on December 15, 1973, at- tached this to the offset press in place of the Count-o-Veyor. During the period from September 2, 1973, to December 15, 1973, the work of removing the supplements from the stacker and placing them on BALTIMORE WEB PRESSMEN 'S UNION NO. 31 skids was performed by the junior pressmen assigned to assist the pressmen operating the press. The Mail- ers president testified that he protested this assign- ment but did not follow through on it because of his understanding that the supplements were not deliv- ered to the stacker by means of conveyors. Shortly after December 15, 1973, the Mailers filed a grievance protesting the assignment of such work to the junior pressmen, eventually demanding arbitra- tion of the issue . The Employer refused to arbitrate on the basis that the issue was jurisdictional assignment of work which was not subject to the grievance arbi- tration clause of the contract. On March 29, 1974, the Mailers filed suit in the United States District Court of the District of Maryland, seeking to compel the Employer to arbitrate this issue. On April 8, 1974, the Respondent's president wrote the Employer stating that if the Employer should change any of the work assignments relating to the offset press, including that of the junior pressmen, the Respondent would cause a work stoppage. B. The Work in Dispute The work in dispute consists of the handling of the printed product from the Goss press, as it comes out of the press, and placing it on skids or in wire baskets for movement to the mailroom for later insertion in the Sunday paper by members of the Mailers. The TV supplement comes off the press through the counter- stacker which counts the supplements and stacks them into bundles. C. Contentions of the Parties The Employer contends that the disputed work should be left as assigned to employees represented by the Respondent; that this dispute is properly before the Board because of the Respondent's threat and the fact that no voluntary means exist to settle this dispute to which all parties are bound; and that the assign- ment is consistent with its contract with Respondent, follows area practice, is more economical and effi- cient, and involves skills which employees represented by Respondent possess. The Respondent, in all basic respects, agrees with the Employer's position. The Mailers, on the other hand, insists that the work should be assigned to members of the Mailers Union. In addition, the Mailers, as noted above, has filed suit seeking arbitration of this issue and has named the Employer as defendant with an amended complaint having been filed naming the Respondent as a defendant also. Because of the posture of the civil suit, the Mailers contends that the issues presented here can be resolved through arbitration. 275 D. Applicability of the Statute Before the Board may proceed with a determina- tion of 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, and that there is no agreed-upon method for the voluntary adjustment of the dispute. As described supra, the record shows that Respon- dent demanded that the work not be reassigned to employees represented by the Mailers, and threatened to strike if such a reassignment were made. Accord- ingly, and without ruling on the credibility of the testimony in issue, we are satisfied that there is rea- sonable cause to believe a violation of Section 8(b)(4)(D) did occur.' Furthermore, we are not satisfied that all parties have agreed to be bound to a voluntary method for the private settlement of this dispute. The Board has long declined to find that grievance proceedings not involving all parties to the dispute constitute an ade- quate method for adjustment within the meaning of Section 10(k). The fact that there are two contracts, one between the Employer and Respondent, and an- other between the Employer and the Mailers, each providing for arbitration of such disputes under that contract, does not support a finding that all parties have agreed to be bound by a single tripartite arbitra- tion proceeding. Nor do we find merit in the Mailers contention that the current suit in the United States District Court will provide for tripartite arbitration. Assuming arguendo, that the district court would or- der arbitration under the Mailers contract, there is no reason to believe that the district court would not also, upon request by the Pressmen, order arbitration un- der its contract with the Employer. Thus, in the ab- sence of any waiver by the Respondent of its contractual right to arbitration under the procedures set forth in its contract with the Employer or agree- ment by Respondent to be bound by an arbitration award rendered under the procedures set forth in the Mailers contract with the Employer,' we are of the opinion that there is no agreed-upon method for the voluntary adjustment of this dispute. Under these cir- cumstances, we find that it will effectuate the policies of Section 10(k) and Section 8(b)(4)(D) of the Act for us to determine the merits of the dispute, and we therefore find that this dispute is properly before the 2 The Denver Printing Pressmen and Assistants Union, Local 22 a/w the International Printing and Graphic Communications Union (The Denver Pub- lishing Company), 208 NLRB No. 114 (1974). 3 See Columbia Broadcasting System, Inc. v. American Recording and Broad- casting Association, 414 F.2d 1326, 1329 (C.A. 2, 1969). 276 Board. DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified as collective-bargaining representa- tive for a unit of the Employer's employees. However, both Unions have collective-bargaining contracts with the Employer. Respondent's contract provides that it shall apply to employees in the pressroom cov- ered by the agreement and shall extend over all print- ing presses employed in such pressroom. The contract also provides that "Should the Publisher introduce any new device or equipment that functions as a sub- stitute for or evolution of the printing presses now used for pressroom work, the jurisdiction of the Union will extend to the operation and maintenance of such device. . . ." In its letter of understanding dated December 22, 1972, between the Employer and Respondent it was provided that "2. If the product is not delivered direct to the mailroom, 2 junior press- men will be added to the press crew." The Mailers contract provides for coverage of "all work pertaining to mailing in the mailroom such as tagging, bundling ... dispatching of papers in the mailroom and the handling of papers from conveyors attached to the presses, is a part of the mailing trade." In our opinion, because of the fact that the Respondent's contract specifically covers functions performed in the press- room, the location of the work in dispute, we find that its contract favors assignment to pressmen. We find no merit in the Mailers argument that because the supplements traverse a short conveyor (approximate- ly 18 inches) before going into the counter-stacker the work belongs to its members under the contract clause covering the "handling of papers from convey- ors attached to the press." From the record it is clear that when the Employer installed the Goss press the operation was designed as an integrated operation providing for the finished product, stacked and count- ed for delivery to the mailroom. In addition, James R. Price, the Employer's director of production, testified that the Respondent has jurisdiction over the convey- ors from the regular presses all the way up to the switches in the mailroom, some two floors above the pressroom. 2. Employer and area practice, In view of the fact that the Employer had previous- ly contracted this work through an outside printing firm, and, therefore, the work in dispute was not per- formed in its plant, we find that the Employer's past practice is not helpful in making our determination. As to area practice, the record shows that in a similar operation at the New York Daily News junior press- men handle the supplements as they come out of the counter-stacker. In addition, we note our decision in The Denver Publishing Company, supra, wherein simi- lar work in dispute was awarded to the pressmen. Even though this is a relatively new operation in the newspaper industry, we nevertheless find that the area practice, limited as it is, favors assignment to the pressmen. 3. Skills, efficiency, and economy of operation The record clearly indicates that the junior press- men possess the skills necessary to perform the work in dispute. At the same time, while members of the Mailers also possess the necessary skills required to take the stacked supplements out of the counter- stacker, there is no evidence to establish that employ- ees represented by the Mailers possess those other skills used by the junior pressmen in assisting the pressmen operating the presses , functions that take up approximately 30 percent of the junior pressmen's time. In addition, the Employer points out that if the work had been assigned to mailers in the pressroom 4 they could not perform those other jobs done by the junior pressmen in relation to the presses because of the jurisdictional lines between the Unions. These same jurisdictional lines would also cause substantial scheduling and supervisory problems if mailers were assigned the work in the pressroom. If the pressroom foreman had a supervisory problem with a mailer, it would be necessary to call the mailroom foreman from his station two floors above, and, as to schedul- ing, the presses could only be run if mailers as well as pressmen were available. In these circumstances, we find that the factors of efficiency and economy favor assignment to the pressmen. Conclusions Having considered all pertinent factors present herein, we conclude that employees who are repre- sented by Respondent are entitled to perform the work in dispute. This assignment is consistent with the 4 The Employer's witnesses testified to the impracticality of building a set of conveyors that would take the supplements up to the mailroom. BALTIMORE WEB PRESSMEN 'S UNION NO. 31 277 initial assignment, the contracts, the existing practice in this field, and the efficiency and economy of opera- tion. In making this determination, we are awarding the work in question to employees employed by the Employer who are represented by the Respondent, but not to that Union or its members. The present determination is limited to the particular controversy which gave rise to this proceeding. 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 pro- ceeding , the National Labor Relations Board makes the following Determination of Dispute: Employees of The A. S. Abell Company who are currently represented by Baltimore Newspaper Web Pressmen's Union No. 31, affiliated with Internation- al Printing & Graphics Communications Union of North America , AFL-CIO, are entitled to handle the printed product from the Goss press as it comes out of the counter-stacker and place it on skids or in wire baskets for movement to the mailroom.