Communications Workers Local 915 (Newsday)

National Labor Relations Board - Board Decisions

Mar 27, 1992

306 N.L.R.B. 874 (N.L.R.B. 1992)

874
306 NLRB No. 177
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Except where otherwise indicated, all dates refer to 1990.
2 Local 406 was served notice of the 10(k) hearing and appeared
at the hearing, through its representative, as a party in interest.
3 The record indicates that Newsday planned to further simplify the
pagemaking process deleting the ad alley and composing page make-
up steps, and later to delete the typesetting and page camera func-
tions.
4 The only specific evidence on the timing of the initial hires in
the EPR is based on the testimony of employee Edward Korona,
who was stipulated as being one of the initial hires and who testified
that after he applied, he was interviewed in mid-October and hired
on November 5.
Long Island Typographical Union, No. 915, Print-
ing, Publishing and Media Workers Sector,
Communications Workers of America, AFL–
CIO and Newsday, Inc. Case 29–CD–381
March 27, 1992
DECISION AND ORDER QUASHING NOTICE
OF HEARING
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed on November 14, 1990,1 by Newsday, Inc., alleg-
ing that the Respondent, Long Island Typographical
Union No. 915, Printing, Publishing and Media Work-
ers Sector, Communications Workers of America,
AFL–CIO (Local 915), violated Section 8(b)(4)(D) of
the National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Employer
to assign certain work to employees it represents rather
than to employees represented by the Graphic Commu-
nications International Union, AFL–CIO, Local 406
(Local 406).2 The hearing was held on March 20–22
and May 6, 1991, before Hearing Officer Jonathan
Leiner. Thereafter, Newsday and Local 915 filed briefs
in support of their positions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
Newsday, a New York corporation with its principal
office and place of business in Melville, New York, is
engaged in the publication and sale of newspapers. An-
nually, Newsday derives gross revenue in excess of
$200,000, subscribes to an interstate news service, and
purchases and receives goods and materials valued in
excess of $50,000 directly from points located outside
the State of New York. The parties stipulate, and we
find, that Newsday is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
Local 915 and Local 406 are labor organizations with-
in the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Newsday’s Operations
At the time of the events that gave rise to this pro-
ceeding, Newsday had been using a paper-based meth-
od of creating the pages of its newspaper. ‘‘Page-mak-
ing’’ functions, i.e., the steps preceding transfer to the
plate room where plates were created for printing the
newspaper itself, were performed by employees in the
composing room and related departments, and to some
extent involved the use of computers. Composing room
employees are represented by Local 915.
As part of a newer methodology that Newsday de-
sired to implement, which entailed a greater use of
computers, Newsday created the electronic pre-press
room (EPR). Under this methodology, as before, the ad
publications department receives the incoming adver-
tisement and combines it with an insertion order. The
advertisment’s artwork and words are then transformed
to a print medium using an ‘‘ECRM scanner’’—use of
this scanner eliminates the need for separate machines
to convert advertisment components to print medium.
Next, an operator assembles the graphics and composi-
tion using a ‘‘Sun Breeze terminal’’ and sends the
advertisment to the typesetter who creates a complete
advertisment on photographic paper that is ready for
insertion into the newspaper—the latter step eliminates
the pasteup function. The completed advertisment is
then sent to ad alley for storage, and later composed
as a page, the page photographed, and the negative
sent to the plate room.3
B. The Alleged Unlawful Conduct
On September 28, at a meeting between Newsday
and Local 915 representatives, Newsday officials in-
formed Local 915 of their decision to implement the
new methodology described above and to establish the
new work area referred to as the EPR. At that time
Newsday indicated that the EPR would be a part of the
platemaking department, the employees of which are
represented by Local 406, and that Newsday would be
announcing the job postings for positions in the EPR.
Newsday also informed Local 915 that it had entered
into an accretion agreement with Local 406 under
which EPR employees would be represented by Local
406, rather than by Local 915. The accretion agree-
ment is dated September 5.
After the September 28 meeting, Newsday posted on
a companywide basis the EPR positions which were
available in the EPR. The posting occurred in the first
2 weeks of October, with the initial hirings occurring
apparently shortly thereafter.4 The parties stipulated
that a total of 16 persons were initially hired to work
in the EPR on one of the three shifts. Three of those
875COMMUNICATIONS WORKERS LOCAL 915 (NEWSDAY)
5 It does not appear that foremen were represented either by Local
915 or by Local 406.
6 The four apprentice employees transferred from telecommuni-
cations, publications, the mailroom, and transportation.
7 These two employees returned to their department of origin after
working briefly in the EPR.
8 Local 915 asserts that Newsday screened and assigned EPR posi-
tions to 10 other composing room employees but then decided
against their transfer, purportedly to avoid the EPR becoming staffed
with a majority complement of Local 915-represented employees.
The record, however, is insufficient to establish that such assign-
ments were made or retracted.
9 Sec. 2 of the jurisdiction provision of the collective-bargaining
agreement between Local 915 and Newsday states in part:
(a) The jurisdiction of the Union is defined as all work as-
signed to the Composing Room of the Publisher. The Publisher
shall have the right to assign any of the work required by such
new or existing technology, equipment or processes to any de-
partment of the Publisher, including departments not covered by
the agreement; the Union agrees to process copy or material pro-
duced in such other departments. The [P]ublisher will assign to
the employees covered by this agreement [sic] work of the type
traditionally performed in the Composing Room such as paste-
up, mark-up, keyboarding, make-up, proofreading, typesetter and
camera operations including maintenance, ad composition or
variations of those functions as the functions change due to new
technology, but this does not mean that all or any portion of any
one function must be exclusively performed in the Composing
Room. . . . Employees covered by this contract may be as-
signed on a voluntary basis to work in departments other than
the Composing Room to perform the work specified herein pro-
vided that they remain covered by this contract. . . . It is mutu-
ally agreed that the jurisdiction and production flexibility pro-
vided herein does not conflict with the basic concept recognized
by the parties in this Agreement of a composing room bar-
gaining unit and that work is to continue to be performed by
the composing room unit subject to the rights of the Publisher
to assign and reassign work as stated herein.
(b) When existing and new type of equipment or processes are
to be introduced into the composing room operation, the Pub-
lisher will give the Union as much notice as is reasonable, in
order to provide an opportunity for qualified journeymen and ap-
prentices to train for its operation. When such equipment or
processes are introduced, employes [sic] who have demonstrated
an aptitude for such work shall be given Local 915 the first op-
portunity to attain proficiency in its operation.
10 The slipboard, or ‘‘subboard’’ as it is called alternatively, lists
the names of substitutes available for work in priority order by the
shift they would like to work. It also indicates substitutes’ ostensible
availability for the next day’s shifts. The board is controlled by the
chapel chairman, but its accessibility at a glance gives composing
room supervisors an idea of how to plan for employees’ absences
and for extra shifts.
11 Local 915 ultimately did grieve Newsday’s decision. It also re-
moved the slipboard to headquarters, but it did not cause situation
holders to lose their priority or ‘‘situation’’ in the composing room.
At the September 28 meeting, Ferrauiola additionally read portions
of the prepared statement indicating that Local 915 would: (1) at-
tempt to obtain an injunction to prevent Newsday from allowing
Local 406 to operate the ‘‘Markup Room,’’ which it considered to
be its work; (2) file suit because of Newsday’s secret negotiations
with Local 406 for jurisdiction of the ‘‘Markup Room’’; (3) imme-
diately go to arbitration, including use of appeals if necessary, to go
after work removed from its jurisdiction, such as Ad Alley, Classi-
fied, and Inputting work, etc.; and (4) institute arbitration in speci-
fied unrelated matters, including a medical issue, a sick pay issue,
and a Color Lab Training classification.
hired were foremen, who had been supervisory fore-
men in the composing room.5 Of the 13 remaining em-
ployees who were initially hired, 7 transferred from the
composing room into journeyman positions in the EPR
and 4 transferred from other departments6 into appren-
tice positions in the EPR. The record does not specify
the EPR positions or origins of the two remaining ini-
tial hires.7 No employees transferred into EPR from
the platemaking room. Thereafter, additional employ-
ees were hired in the EPR, and at the time of the hear-
ing in May 1991, the EPR included the 3 foremen, 11
journeymen who had transferred from the composing
room, and 18 apprentices who had transferred from a
number of departments or areas. None of these em-
ployees transferred from the platemaking room.8
Immediately following the September 28 announce-
ment, CWA International Representative Arthur Byrns
voiced disagreement with Newsday’s decision and stat-
ed that Local 915 would ‘‘look for all means to over-
turn [it],’’ including a grievance, a joint standing griev-
ance meeting, and arbitration.9 Local 915 Chapel
Chairman Ed Ferrauiola read a prepared statement de-
claring, among other things, that Local 915 would ac-
tively pursue all grievances in process, ‘‘remove the
slipboard [from the composing room] to [Local 915]
headquarters to be manned confidentially,’’10 and that
Local 915 members would lose their priority standing
and situation in the composing room permanently if
they moved to the EPR.11 A discussion ensued con-
cerning the slipboard in which Newsday Vice Presi-
dent for Human Resources Alberto Ibarguen accused
Local 915 of sabotaging the operation. Ferrauiola re-
sponded that he would ‘‘in no way jeopardize the
newspaper,’’ and Byrns and Local 915 President Den-
nis O’Rourke stated they had no intention of any sort
of sabotage and that if they heard of anybody engaging
in sabotage, they would put a stop to it. In response
to Newsday’s questions, Ferrauiola explained that if
Newsday needed a certain number of people to work
after removal of the slipboard, it could call the union
hall and they would be supplied. The meeting ended
with Byrns stating that Local 915 would ‘‘resist in
legal ways, the new assignment.’’
Also, on September 28, Local 915 posted a notice
to its members advising them that the meeting had
taken place and that Local 915 would take ‘‘appro-
priate action’’ based on ‘‘approval of CWA’s legal de-
partment.’’ Either on the same day or a day later,
Ferrauiola reiterated to Newsday Vice President of Op-
erations Jim Norris that he had no intent to disrupt op-
erations. Thereafter, on October 2, Local 915 posted a
notice to chapel members asking that they ‘‘not take
part in Newsday’s action to steal work from the Com-
posing Room’’ by seeking EPR positions. The notice
indicated that the CWA International intended to pro-
vide legal assistance to move the matter to arbitration,
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 On or about November 15, Local 915 filed an 8(a)(2) charge
against Newsday concerning its recognition of Local 406 as the rep-
resentative of the EPR employees. A complaint was issued on the
charge in Case 29–CA–15350, and we are administratively advised
that that matter is pending before an administrative law judge.
13 Compare Operating Engineers Local 3 (Schnitzer Steel), 303
NLRB 13 fn. 5 (1991), and Stage Employees IATSE Local 659 (King
Broadcasting Co.), 216 NLRB 860, 862 (1975).
as quickly as possible ‘‘to keep this work in the Chap-
el, where it belongs.’’
Two days later, on October 4, Local 915 replaced
the earlier notice with one urging its members to apply
for EPR positions. The notice stated:
The International and the Local encourage all
members, in light of the present situation, to
apply for any positions offered under Newsday’s
proposed ‘‘Electronic Pre-Press Department.’’
Newsday’s attempts to put Local 915 members at
a disadvantage, by pitting them against their own
union to maintain jobs that they currently per-
form, will not prove effective.
Local 915 will continue to pursue all avenues in
an attempt to ensure that justice will be served—
that Local 915 is the bargaining representative for
the employees performing this work.
Newsday will, at no time, be compromised by this
union in their endeavor to produce a daily paper.
A copy of the second notice, among other things,
was sent to Newsday on October 5 in response to a
letter from Ibarguen that requested that Local 915
‘‘disavow [the] irresponsible statements and actions’’
made during the September 28 meeting.
On November 14, Newsday filed the instant
8(b)(4)(D) charge against Local 915, alleging that the
Union’s statements at the September 28 meeting vio-
lated the Act.12
C. Work in Dispute
The work in dispute involves page-making work
using a new, largely computer-based methodology as
opposed to the current paper-based methodology.
D. Contentions of the Parties
Newsday contends that Local 915 threatened it and
its employees and filed a grievance for the explicit
purpose of pressuring Newsday to assign the EPR
work to Local 915-represented composing room em-
ployees. It characterizes the case as one in which the
‘‘work assignment in issue . . . was made to the EPR
which Newsday has established as a unit of the
Platemaking Department and which it views as an ac-
cretion to the Local 406 Platemaking bargaining unit.’’
Newsday further contends that its assignment of the
work to employees in the EPR should be ‘‘sustained’’
by the Board because Local 915 has no claim to the
work under its collective-bargaining agreement, and
because efficiency and economy of operations, em-
ployer preference, and other 10(k) factors support such
an award.
Local 915 has moved to quash the notice of hearing.
It contends that there is no reasonable cause to believe
it violated Section 8(b)(4)(D) for the following rea-
sons: it made no threats and took no action that was
intended to interfere with Newsday’s operations, and
any statements it made that may have been unlawful
were immediately disavowed; the grievance it filed
concerning the work is but one of several lawful legal
avenues it stated it would pursue based on a reasonable
interpretation of its collective-bargaining agreement
with Newsday; and, finally, the dispute is not a work-
assignment dispute but rather one over who should
represent the employees performing the work which
was traditionally performed by composing room em-
ployees it represented. In the event the Board deter-
mines that a dispute exists, however, Local 915 con-
tends that the tasks performed in the EPR should be
assigned to employees it represents on the basis of its
collective-bargaining agreement, past practice (or what
it terms ‘‘substitution of functions’’), skills, and indus-
try and area practice.
E. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k), it must be satis-
fied that reasonable cause exists to believe that Section
8(b)(4)(D) has been violated and that the parties have
not agreed on a method for the voluntary settlement of
their dispute. We are not satisfied that reasonable
cause exists to believe that a violation has occurred in
this case.
Although each union has ‘‘claimed’’ the EPR work
for its members, on close inspection we find, as argued
by Local 915, that the facts of the case do not con-
stitute a traditional work assignment dispute. To begin
with, Newsday assigned the new methodology for
pagemaking to an unstaffed, newly created area of its
operation, the EPR, and not to a specific group of em-
ployees. Newsday entered into an ‘‘accretion’’ agree-
ment with Local 406 recognizing it as the representa-
tive of the as-yet-undesignated employees who would
be selected for the EPR positions. The employees were
selected following companywide posting. Each union
now seeks to represent these employees. Accordingly,
this case lacks a fundamental prerequisite for a juris-
dictional dispute: the existence of competing groups of
employees. Although the Board has recognized that a
jurisdictional dispute may arise with respect to an em-
ployer’s assignment of future work to a defined group
of employees,13 these cases involve competing claims
to the work by separate, identifiable groups of employ-
877COMMUNICATIONS WORKERS LOCAL 915 (NEWSDAY)
14 There is no evidence that Local 915 was informed by Newsday
at the September 28 meeting as to whom the latter was seeking to
fill the EPR positions, other than the general statement to the Union
that Newsday would be posting such positions. The fact that the ma-
jority of the initial EPR hires (and all the journeymen) were employ-
ees who transferred from the composing room, where they had been
represented by Local 915, but now according to Newsday’s agree-
ment with Local 406 were to be represented by Local 406, highlights
the fact that in the first instance this was a representational matter.
15 We note that our conclusion in this case is not dependent on,
and need not control, the outcome of concurrent unfair labor practice
proceeding.
16 In light of our finding that there were no groups of employees
competing for the disputed work, we find it unnecessary to pass on
whether any of Local 915’s conduct at the September 28 meeting
with Newsday, and its subsequent related correspondence, con-
stituted conduct proscribed by Sec. 8(b)(4)(i) and (ii)(D) of the Act.
17 If Local 915 had responded to Newsday’s actual assignment of
non-composing room employees to do EPR work with a request that
Local 915 be designated their representative, this request would have
been inadequate to transform this proceeding into a jurisdictional
dispute case. See Laborers Local 1 (DEL Construction Co.), 285
NLRB 593 (1987).
18 On June 2, 1991, Local 406 filed a motion to reopen the record
to include the May 13, 1991 decision of Impartial Umpire Howard
Lesnick in a proceeding between Local 915 and Local 406. In his
decision, Lesnick concluded that Local 406 did not violate the AFL–
CIO constitution, as charged, by representing employees as to whom
an established collective-bargaining relationship exists and by taking
or accepting jurisdiction of composing room work. Although we
grant the motion, we find that Lesnick’s decision does not affect our
findings that the 10(k) mechanism is inappropriate for resolving the
instant representational dispute.
19 In view of our holding on the representational nature of the in-
stant dispute, we find it unnecessary to address Local 915’s claim
that it relied on a lawful, contractually based work-preservation ob-
jective regarding traditional composing room work.
ees, not just competing claims to be the representative
of a single group of employees. In the absence of the
actual selection of employees to be assigned the work,
we find the facts in this case inadequate to show that
there were two groups of employees making com-
peting claims for the work.14 Further, since Newsday’s
September 28 announcement, Local 915 has variously
but consistently protested to Newsday that recognition
of Local 406 as the representative of EPR employees
was premature and violated the Act, a position which
is consistent with this being solely a representational
issue.15 In addition, in its October 4 notice to mem-
bers, Local 915 explained that its goal was representa-
tional. The notice stated that ‘‘Local 915 will continue
to pursue all avenues in an attempt to ensure that jus-
tice will be served—that Local 915 is the bargaining
reprsentative for the employees performing this work.’’
Finally, we find that the evidence presented in this
case principally pertains to Local 915’s reaction to
Newsday’s initial September 28 announcement and
correspondence relating to this reaction. The record
does not establish that Local 915 engaged in further
conduct after the EPR positions were filled which
would establish any basis for finding reasonable cause
to believe that a violation of Section 8(b)(4) has oc-
curred.16 In this regard, there is no evidence that Local
915 made any further claims specifically regarding the
EPR work assigned to employees who had transferred
from areas other than the composing room17 and, more
importantly, no evidence that any arguably coercive
conduct occurred regarding those employees.
Although the precedent in this area is not extensive,
it is clear that the Board makes a fundamental distinc-
tion between disputes which are purely representational
and cases which involve actual jurisdictional disputes.
In Food & Commercial Workers Local 1222 (Fedmart
Stores), 262 NLRB 817 (1982), the Board found that
a recognitional dispute rather than a traditional juris-
dictional dispute existed where the employer instituted
a new pricemarking and inventory system, selected
employees already represented by both UFCW and
Teamsters to operate it, and recognized the Teamsters
local as the representative of employees performing the
work. There, UFCW contested the employer’s recogni-
tion of Teamsters as the bargaining representative and
arbitrated the removal of work traditionally performed
by its members and the assignment of it to employees
who were then required to join the Teamsters. Quoting
Communications Workers (Mountain States Tele-
phone), 118 NLRB 1104, 1107–1108 (1957), the
Board stated:
There must, in short, be either an attempt to take
a work assignment away from another group, or
to obtain the assignment rather than have it given
to the other group.
. . . .
A demand for recognition as bargaining represent-
ative for employees doing a particular job, or in
a particular department, does not to the slightest
degree connote a demand for the assignment of
work to particular employees rather than to others.
In the instant case, Local 915 similarly has only re-
sisted Newsday’s ostensibly unilateral decision to im-
pose Local 406 representation on EPR employees even
before they had been selected.
For the reasons stated above, we conclude that the
dispute herein is not over the assignment of work to
one group of employees rather than another within the
meaning of Section 8(b)(4)(D).18 Accordingly, because
this matter is not a dispute within the meaning of Sec-
tion 10(k), we shall quash the notice of hearing.19
ORDER
It is ordered that the notice of hearing in Case 29–
CD–381 is quashed.