Communications Workers Local 11-C (Rosenthal & Co.)

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 531 (N.L.R.B. 1993)

531
312 NLRB No. 87
COMMUNICATIONS WORKERS LOCAL 11-C (ROSENTHAL & CO.)
Cincinnati Printing Pressmen, Assistants and Offset
Workers’ Union Local 11-C, affiliated with
Graphic Communications International Union,
AFL–CIO–CLC and S. Rosenthal & Company,
Inc. and Cincinnati Typographical Union Local
No. 3 Communications Workers of America,
#14519, AFL–CIO–CLC. Case 9–CD–467
September 30, 1993
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed April 2, 1993, by S. Rosenthal & Company, Inc.,
the Employer, alleging that the Respondent, Cincinnati
Printing Pressmen, Assistants and Offset Workers’
Union Local 11-C, affiliated with Graphic Commu-
nications International Union, AFL–CIO–CLC (GCIU),
violated Section 8(b)(4)(D) of the National Labor Re-
lations Act by engaging in proscribed activity with an
object of forcing or requiring the Employer to assign
certain work to employees it represents rather than to
employees represented by Cincinnati Typographical
Union Local No. 3 Communications Workers of Amer-
ica, #14519, AFL–CIO–CLC (CWA). The hearing was
held on May 17, 1993, before Hearing Officer Heather
E. McClure. Thereafter, the Employer, GCIU, and
CWA filed briefs in support of their positions.
The National Labor Relations Board affirms the
hearing officer’s rulings, finding them free from preju-
dicial error. On the entire record, the Board makes the
following findings.
I. JURISDICTION
The Employer is an Ohio corporation with an office
and place of business in Cincinnati, Ohio, where it is
engaged in the business of printing publications and
catalogs. During the 12 months preceding the hearing,
a representative period, the Employer, in the course
and conduct of its business, sold and shipped from its
Cincinnati, Ohio facility goods valued in excess of
$50,000 directly to points outside the State of Ohio.
The parties stipulated, and we find, that the Employer
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that GCIU and CWA are
labor organizations within the meaning of Section 2(5)
of the Act.
II. DISPUTE
A. Background and Facts of Dispute
CWA represents employees who perform work in
the Employer’s photo comp department. GCIU rep-
resents employees who perform work in the pre-press
department. There are approximately 28 employees in
the GCIU bargaining unit, and 5 employees in the
CWA bargaining unit. As set forth in its collective-bar-
gaining agreement with the Employer, GCIU has juris-
diction over platemaking, camera operation, darkroom
work, stripping, and opaquing. The collective-bargain-
ing agreement between the Employer and CWA pro-
vides that CWA has jurisdiction over all composing
room work, including preparation of a camera-ready
copy and all work customarily done in typesetting de-
partments.
The Employer is engaged in the printing of several
regional editions of TV Guide at its 9933 Alliance
Road, Cincinnati, Ohio facility for its customer TV
Guide. This involves the following work performed by
composing room employees represented by CWA: re-
ceiving type through a modem transmission from TV
Guide headquarters located in Radnor, Pennsylvania;
transferring this transmission to the typesetting ma-
chine; waxing the paper; pasting it up on art boards;
correcting errors found by in-house TV Guide em-
ployed editors; and pasting up four-page spreads to be
sent to the pre-press area. The pre-press employees
represented by GCIU perform the following work on
the TV Guide job: photographing the four-page
spreads to make a lithographic film in negative; plac-
ing the negative on a light table to check for quality
of resolution and density of highlights and opaquing;
stripping and film assembly; attaching the assembled
film to a clear acetate carrier; vacuuming air from the
carrier; pinning the carrier to a photographic plate; and
developing the plate.
The work in dispute is the installation and operation
of an image-setting machine for the Employer’s per-
formance of work for its customer TV Guide. The
imagesetter will obviate the need for nearly all of the
above-listed work tasks. The imagesetter is a piece of
equipment through which type and graphics may be
transmitted electronically over fiber optics from TV
Guide headquarters with the finished, assembled page
image already prepared in complete form. An elec-
tronic storage at the Employer’s facility accepts the
transmission which is stored in a drum scanner. No
longer will typed copy be produced, edited, and assem-
bled with graphics at the Employer’s facility. The op-
eration of the imagesetter will involve hanging raw
film on a drum and vacuuming air out and processing
the film. Once the film is processed, it must be
checked for quality and opaqued before the plate is
made.
By letter dated March 4, 1993, the Employer’s plant
supervisor, James Brown, advised James Elkins, sec-
retary-treasurer/business agent for GCIU, that the Em-
ployer intended to install and operate new image-set-
ting equipment and that the work performed on this
new equipment would be assigned to employees in the
unit represented by GCIU. Subsequently, CWA filed a
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
grievance in which it asserted that the work associated
with the imagesetter fell within its jurisdiction. By let-
ter dated April 16, 1993, Elkins advised Brown that it
was his understanding that CWA had protested the
imagesetter assignment and had filed a grievance and
demanded that the work be assigned to employees it
represents. Elkins also informed Brown in this letter
that:
[I]n the event that the assignment of work on the
imagesetter is arbitrated and the assignment of the
work is made by the arbitrator to the [CWA], and
the [Employer] reassigns the work to the [CWA],
let there be no mistake, [GCIU] will authorize a
strike with an object of forcing the [Employer] to
honor the original assignment.
B. Work in Dispute
The work in dispute is the installation and operation
of an image-setting machine for the performance of
work at the Employer’s 9933 Alliance Road, Cin-
cinnati, Ohio facility for its customer TV Guide.
C. Contentions of the Parties
The Employer contends that there is reasonable
cause to believe GCIU violated Section 8(b)(4)(D) and
that the proceeding is properly before the Board for
determination of the dispute. The Employer has ex-
pressed its preference that the Board award the dis-
puted work to its employees represented by GCIU. The
Employer further contends that the factors of relative
skills, economy, and efficiency of the operation, col-
lective-bargaining agreements, and area and industry
practice favor an award of the disputed work to these
employees.
GCIU also takes the position that the factors of rel-
ative skills, economy and efficiency of the operation,
and employer preference favor an award of the dis-
puted work to employees represented by it. It further
contends that the language of its collective-bargaining
agreement with the Employer favors an award of this
work to employees it represents.
CWA contends that the language in its collective-
bargaining agreement, the Employer’s past practice,
and the fact that the imagesetter will eliminate the en-
tire photo comp department if composing room em-
ployees are not permitted to operate this equipment
favor the award of the disputed work to employees it
represents.
D. Applicability of the Statute
Before the Board may proceed with a determination
of dispute under 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 the par-
ties have not agreed on a method for the voluntary ad-
justment of the dispute.
As set forth above, GCIU’s secretary-treasurer/-
business agent, Elkins, wrote a letter to the Employ-
er’s plant supervisor, Brown, advising him that he had
heard that CWA had protested the assignment of the
image-setter work to employees represented by GCIU.
In this letter Elkins further warned the Employer that
if the assignment of work on the imagesetter was over-
turned by an arbitrator’s decision and the Employer re-
assigned the work to employees represented by CWA,
GCIU represented employees would strike with an ob-
ject of forcing the Employer to honor its original
agreement.
We find that the foregoing facts establish reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred and, as there is no claim of an agreed-
upon method of voluntary adjustment, we find that the
dispute is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining
agreements
Neither of the Unions has been shown to have been
certified by the Board as the collective-bargaining rep-
resentative of the Employer’s employees.
As noted above, the Employer is party to current
collective-bargaining agreements with both GCIU and
CWA.
CWA relies on its collective-bargaining agreement
with the Employer, noting that section 4(b) of that
agreement provides that ‘‘[w]hen a computer is used
for composing room work [CWA’s] jurisdiction in-
cludes the preparation of all input and handling of all
output, operation of the computer and all input and
output devices, [and] programming.’’ CWA contends
that the imagesetter performs composing room work.
GCIU relies on its collective-bargaining agreement
with the Employer which gives it jurisdiction over ‘‘all
work in connection with . . . camera operation.’’
Neither collective-bargaining agreement specifically
mentions the work in dispute, the operation of the
image-setting machine, or appears to specifically cover
the work in dispute to the exclusion of the other
Union. The factors of certifications and collective-bar-
gaining agreements, therefore, are inconclusive.
533COMMUNICATIONS WORKERS LOCAL 11-C (ROSENTHAL & CO.)
2. Employer preference and past practice
The Employer has indicated its intention to assign
the work in dispute to its employees represented by
GCIU. As noted above, by letter dated March 4, 1993,
the Employer informed Elkins that it would use only
GCIU-represented employees to perform work on the
imagesetter. Further, the Employer has stated its pref-
erence that all work associated with the imagesetter be
awarded to employees represented by GCIU. Accord-
ingly, we find that this factor favors the award of the
disputed work to employees represented by GCIU.
3. Area and industry practice
There appears to be no area or industry practice for
the assignment of image-setter work. There was testi-
mony that another company in Cincinnati operates a
small imagesetter and uses employees represented by
GCIU to perform the work, but, there is only one bar-
gaining unit at that company. In addition, evidence
was presented about an employer who had the first
imagesetter installed for TV Guide on the West Coast,
but the machinery is not yet operational, and it is a
nonunion shop. We find this limited evidence insuffi-
cient to establish an area or industry practice.
4. Relative skills
The imagesetter will use laser technology to convert
image graphics and final copy received from TV Guide
in Radnor directly onto a large piece of film. The op-
eration of the imagesetter will require skills such as
handling film and negatives. The employees rep-
resented by GCIU perform similar work currently.
These employees have experience in handling film and
negatives on a day-to-day basis. They possess skills
such as opaquing, hole punching, film analysis, operat-
ing the camera to create negatives, stripping and post-
ing the negatives, and processing the negatives in a
darkroom. In contrast, the employees represented by
CWA do not have experience with film or handling
negatives. Accordingly, the factor of relative skills sup-
ports an award of the work to employees represented
by GCIU.
5. Economy and efficiency of operations
Brown testified that it would be more economical
and efficient if employees represented by GCIU per-
form the disputed work because, as he stated, ‘‘the em-
ployees who will be doing it, in my opinion, are the
employees who are doing similar work now so the
work would be more efficient.’’ In addition, Brown
stated that all the equipment now utilized by the em-
ployees represented by GCIU will be necessary for the
operation of the imagesetter. Further, Brown testified
that the imagesetter will be located in the pre-press de-
partment, which is where the employees represented by
GCIU work. Accordingly, we conclude that the factor
of economy and efficiency of operation favors an
award of the disputed work to employees represented
by GCIU.
Conclusion
After considering all the relevant factors, we con-
clude that employees represented by GCIU are entitled
to perform the work in dispute. We reach this conclu-
sion relying on the factors of employer preference, rel-
ative skills, and economy and efficiency of operations.
In making this determination, we are awarding the
work to employees represented by GCIU, not to that
Union or its members. The determination is limited to
the controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of S. Rosenthal & Company, Inc., rep-
resented by Cincinnati Printing Pressmen, Assistants
and Offset Workers’ Union Local 11-C, affiliated with
Graphic Communications International Union, AFL–
CIO–CLC, are entitled to perform the work of install-
ing and operating an image-setting machine for the
performance of work at the Employer’s 9933 Alliance
Road, Cincinnati, Ohio facility for its customer TV
Guide.