Electrical Workers IBEW Local 26 (Washington Post)

National Labor Relations Board - Board Decisions

Feb 13, 1984

268 N.L.R.B. 902 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
Local 26, AFL-CIO and The Washington Post
Company and International Typographical
Union, Columbia Typographical Union, No. 101,
AFL-CIO. Case 5-CD-275
13 February 1984
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by the Washington Post Compa-
ny, herein also called the Employer, alleging that
International Brotherhood of Electrical Workers,
Local 26, AFL-CIO (herein called IBEW, Local
26), had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an
object of forcing or requiring the Employer to
assign certain work to employees it represented
rather than to employees represented by Interna-
tional Typographical Union, Columbia Typo-
graphical Union, No. 101, AFL-CIO (herein called
CTU-101).
Pursuant to a notice, a hearing was held before
Hearing Officer Albert J. Pietrolungo on 12, 17,
18, 19, and 24 May 1983. All parties appeared and
were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to adduce
evidence bearing on the issues.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has reviewed the hearing officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the record in this proceeding, the Board
makes the following findings.
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Delaware corporation, with its principal
place of business in Washington, D.C., is engaged
in the publication of a daily newspaper in Washing-
ton, D.C. During the past year, in the course and
conduct of its business operations, the Employer
derived gross revenues in excess of $200,000 and
regularly printed advertisements of products which
are nationally advertised and sold, published na-
tionally syndicated articles and news stories, and
shipped newspapers to points outside the District
of Columbia. We find that the Employer is en-
gaged in commerce within the meaning of Section
268 NLRB No. 141
2(6) and (7) of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANZIATION INVOLVED
The parties stipulated, and we find, that IBEW,
Local 26, and CTU-101 are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
In 1974 the Washington Post initiated a program
of conversion from hot type production to cold
type production. This transformation was the result
of technological advances which have had a revo-
lutionary impact on commercial printing and which
have resulted in similar conversions throughout the
newspaper industry. As a result of, and in conjunc-
tion with, the conversion to cold type methods, a
computerized technology has replaced traditional
forms of production, and the introduction of Video
Display Terminals (VDTs) either of a type having
self-contained internal microprocessors (smart ter-
minals) or a type which operates in association
with main frame computers (dumb terminals) has
required a broad range of new skills to cope with
operation, production, and maintenance. A number
of specialized systems are now operative and in-
volved in the Employer's daily production, and
these include approximately 750 VDTs located on
4 floors of the Washington Post building.
Following installation of each system a contract
with each vendor specified a period during which
the vendor would perform the maintenance. In
contemplation of the termination of vendor mainte-
nance, the Employer established a technical serv-
ices department in 1981, which was responsible for
maintenance of current electronic equipment (in-
cluding those systems already installed and current-
ly maintained by vendors) and future systems,
except for those systems located in the fourth floor
composing room. For many of the in-place sys-
tems, technical services department electricians
were jointly responsible for maintenance, along
with vendor personnel, and were trained in a
hands-on manner, side by side with vendor techni-
cians.
The Employer began assigning VDT mainte-
nance work to the technical services department
electricians, represented by IBEW, Local 26, in
April 1982. On 6 April 1982 CTU-101 filed a
grievance with the Washington Post claiming a
violation of the supplemental agreement between
the Post and CTU-101 by the Post's assignment of
VDT maintenance outside the composing room to
technical services department electricians repre-
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ELECTRICAL WORKERS IBEW LOCAL 26 (WASHINGTON POST)
sented by IBEW, Local 26. On I December 1982
CTU-101 informed the Post that it would seek ar-
bitration of its claim. The arbitration has been in
abeyance since the filing of the 8(b)(4)(D) charge
which has culminated in the instant proceeding.
B. The Work in Dispute
The work in dispute involves maintenance of
Video Display Terminals (VDTs) at the Employ-
er's 1150 15th Street, N.W., facility in Washington,
D.C.
This work includes the Ray Edit News System
located in the fifth floor newsroom (299 VDTs),
the 5 Ray Edit VDTs on the fourth floor, The
Harris News System, including 50 VDTs in the
fifth floor newsroom and 1 VDT on the fourth
floor. Additionally, the maintenance of the 89
Telcon Portable VDTs is in dispute. Maintenance
of the classified SII system, in the sixth floor classi-
fied phone room and including 171 VDTs, is in dis-
pute, as well as maintenance of the 5 VDTs classi-
fied SII located on the fourth floor but outside the
composing room. Finally, maintenance of the single
VDT on the ADES system located on the fourth
floor outside the composing room is in dispute. In
sum, the maintenance work on the total of 621
VDT units is at issue in the instant dispute.
C. The Contentions of the Parties
The Employer contends that a jurisdictional dis-
pute exists and that its assignment of maintenance
work on VDTs, except for those located in the
composing room, to the electricians represented by
IBEW, Local 26, is supported by the collective-
bargaining agreements, skill and training of the
electricians, the Employer's assignment and prefer-
ence, area and industry practice, job impact, and
efficiency and economy of operations.
IBEW, Local 26, contends that a jurisdictional
dispute exists and that the work in dispute should
be performed by employees represented by IBEW,
Local 26, on the basis of collective-bargaining
The Employer filed a motion to amend the charge and notice of
hearing to include maintenance work on main frame computers and relat-
ed equipment. The motion was denied by the regional director. There-
fore, the main frame computers and other equipment related to the VDTs
in dispute are not included in the dispute and are not subject to this deci-
sion.
Additionally, the parties have stipulated that a number of VDTs are
not in dispute: The electricians represented by IBEW, Local 26, are not
claiming maintenance work on VDTs and equipment located in the
fourth floor composing room, including 10 VDT units on the Ray Comp
Make-Up System, 17 VDT units on the Ad Data Entry System (ADES),
and 2 classified Sll VDT units, all located in the composing room. The
parties have also stipulated that the maintenance work on the 64 VDT
units found in the sixth floor circulation room is not in dispute. CTU-101
has further stipulated that it is not claiming VDT maintenance work on
the business functions system located on the seventh floor and including
40 VDTs. Finally, CTU-101 has stipulated that it is not claiming mainte-
nance work on the business system located in the ad services area of the
fourth floor, outside the composing room, and including six VDTs.
agreements, skills and training, assignment of work,
area and industry practice, efficiency and economy
of operations, job impact, and employer preference.
CTU-101 asserts that there is no probable cause
to believe that Respondent Union IBEW, Local
No. 26, has violated Section 8(bX4XD) of the Act
because there was no bona fide threat to put im-
proper pressure on the Employer over a work as-
signment dispute. CTU-101 further asserts that ma-
chinists it represents should be assigned the work
in dispute on the basis of the collective-bargaining
agreements, comparable skill, area and industry
practice, economy and efficiency of operations, and
because the equipment in dispute was substituted
for equipment previously maintained by employees
represented by CTU-101.
D. Applicability of the Statute
Before the Board may proceed with determina-
tion of a 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) of the Act
has been violated, and that the parties have not
agreed on a method for the voluntary adjustment
of the dispute.
Section 8(b)(4)(D) of the Act provides in perti-
nent part:
(b) It shall be an unfair labor practice for a
labor organization or its agents-
(4) . . . (ii) to threaten, coerce, or restrain
any person engaged in commerce or in an
industry affecting commerce, where in
either case an object thereof is:
(D) forcing or requiring any employer to
assign particular work to employees in a
particular labor organization . . . rather
than to employees in another labor organiza-
tion . . . unless such employer is failing to
conform to an order or certification of the
Board determining the bagaining representa-
tive for employees performing such work
CTU-101 contends that there is no reasonable
cause to believe that a violation of Section
8(b)(4)D) of the Act has occurred. CTU-101's as-
sertion is premised on two contentions: First, that
IBEW, Local 26, and the Employer acted in collu-
sion to formulate the threat in order to invoke the
Board's jurisdiction; and, second, that IBEW,
Local 26, had no intention to carry out its threat-
ened strike.
CTU-101's contention that the Employer and
IBEW, Local 26, acted in collusion is unsupported
in the record. CTU-101 has relied primarily on the
903
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony of Lawrence A. Wallace, the Employer's
vice president for industrial relations, who testified
that on a number of occasions he brought CTU-
101's request for arbitration to the attention of
IBEW, Local 26. Although IBEW, Local 26, ini-
tially did not act on Wallace's information it even-
tually took his advice to consult outside counsel re-
garding the possible adverse impact of CTU-101's
impending arbitration. Following this consultation
IBEW, Local 26, submitted to the Employer a
letter stating that it was prepared to take any ap-
propriate action, "including striking and picketing
in order to protect its contractual jurisdiction
These facts indicate only that the Employer was
aware of the possible impact that arbitration of
CTU-101's grievance regarding work assignment
might have on IBEW, Local 26, not that the Em-
ployer's concern necessarily was collusive. The
Employer could reasonably have feared that CTU-
101's arbitration would trigger collateral litigation.
For while IBEW, Local 26, did not seem particu-
larly concerned with the impending arbitration be-
tween the Employer and CTU-101 at the time the
Employer first raised it, IBEW, Local 26's re-
sponse was that no action was necessary until
actual harm or damage occurred. Therefore,
IBEW, Local 26, declined to join in tripartite arbi-
tration but did not disclaim any future cause of
action which might result from the arbitration.
Thus, even if the Employer's notice to IBEW,
Local 26, was premised on the expectation of a re-
sponse, this fact does not undermine the validity of
that Union's threat nor does it warrant a finding of
collusion. See Broadcast Employees NABET Local
16 (American Broadcasting Co.), 227 NLRB 1462
(1977). In short, the record as a whole provides in-
sufficient basis from which to conclude that the
Employer acted in collusion with IBEW, Local 26,
to avoid arbitration and to contrive a violation of
Section 8(b)(4)(D) of the Act.
CTU-101 also argues that no violation of Sec-
tion 8(b)(4)(D) of the Act occurred because IBEW,
Local 26, did not intend to carry out the threat-
ened strike. A collateral and related argument it
advanced is that no violation of Section 8(b)(4)(D)
of the Act occurred because IBEW, Local 26,
failed to abide by its own bylaws and constitution
in making the strike threat. However, only a find-
ing of "reasonable cause to believe" that a violation
of Section 8(b)(4)(D) of the Act occurred is neces-
sary in order for the Board to proceed pursuant to
Section 10(k) of the Act. See Operating Engineers
Local 18 (Mayer Corp.), 184 NLRB 134 (1970);
Broadcast Employees, Local 16, supra. The Board is
mandated to act on the threat of a work stoppage,
not to wait for the fullfillment of that threat. Addi-
tionally, that a union may choose to act in a
manner beyond the scope of its constitution does
not affect the Board's duties to make a determina-
tion pursuant to Section 10(k).
On the basis of the entire record, we find that
there is reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and that there
exists no agreed-upon method for the voluntary
resolution of the dispute within the meaning of
Section 10(k) of the Act. Accordingly, we find that
this dispute is properly before the Board for deter-
mination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors. 2 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on
common sense and experience reached by balanc-
ing those factors involved in a particular case.3
The following factors are relevant in making the
determination of this dispute.
1. Collective-bargaining agreements
The Employer's collective-bargaining agreement
with CTU-101 in effect at the time the instant dis-
pute arose covers "all composing room work" and
further stipulates that "Maintenance on all equip-
ment under the jurisdiction of the Union shall be
performed by employees covered by this contract."
The contract also states that "whenever
similar/like equipment is utilized for other than
composing room purposes, employees outside the
composing room may be assigned to operate such
similar/like equipment for those other purposes."
The collective-bargaining agreement between
IBEW, Local 26, and the Employer which, al-
though by its terms had expired, continued in
effect on a day-by-day basis states: "The jurisdic-
tion of the Union recognized under this agreement
shall consist of the maintenance and repair of elec-
trical and electronic systems of the buildings occu-
pied by the Washington Post Company" with the
added caveat that: "It is not the intention to invade
the recognized jurisdiction of any other union
.... " Additionally, a supplemental agreement, in-
corporated into the collective-bargaining agree-
ment by reference, states specifically that technical
service department electricians will be primarily re-
sponsible for Harris and Ray Edit terminals in the
I NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcast-
ing System), 364 U.S. 573 (1961).
8 Machinists Lodge 1743 (J. A. Jones Construction Cao.), 135 NLRB 1402
(1962).
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ELECTRICAL WORKERS IBEW LOCAL 26 (WASHINGTON POST)
News On-Line System; for Harris and Ray Edit
terminals, News make-up 4th floor; and further
classification on-line System.
CTU-101 contends that the IBEW, Local 26,
agreement is entitled to no weight because it had
expired. We reject this contention. At the expira-
tion of the agreement, the parties continued to
honor it while attempting to negotiate a new agree-
ment. There was no disagreement concerning re-
newal of the jurisdictional provision. Considering,
therefore, the Employer's contracts with each of
the competing Unions, we have noted that the
agreement between the Employer and CTU-101
contains a positive assignment of work only within
the composing room, while the contract between
the Employer and IBEW, Local 26, specifically
covers electrical and electronic work outside the
composing room, encompassing the work in dis-
pute. Accordingly, this factor favors the assign-
ment of the work in dispute to the employees rep-
resented by IBEW, Local 26.
2. Industry and area practice
The evidence offered regarding industry and
area practice is inconclusive. IBEW, Local 26, of-
fered evidence that several newspapers employ
members of IBEW, Local 26, to perform electronic
maintenance. CTU-101 offered evidence of Inter-
national Typographical Union members performing
electronic maintenance. Nevertheless, it appears the
more common practice among area printers is to
employ nonunion electronic maintenance person-
nel. Therefore, this factor favors neither Union.
3. Skills and training
The disputed work involves maintenance on
VDTs and computer terminals which are integral
parts of approximately eight computer systems in-
stalled at the Washington Post at various times
since 1976. Because of the rapid rate of technologi-
cal advances, the more recently installed systems
are substantially more complex than earlier sys-
tems. Three levels of maintenance are required to
maintain current systems: unit, board, and compo-
nent level maintenance. The simplest, unit level, in-
volves the removal and replacement of terminals
when repair is necessary. Terminals are taken to
the technical services department for repair, and
replacement of defective terminals is performed
quickly to minimize downtime. Board level mainte-
nance is more complex, requiring the removal and
replacement of electronic boards within the termi-
nals which contain resistors, transistors, circuits,
and other electronic parts. Board level maintenance
requires troubleshooting in order to determine
which boards are defective, but does not involve
repair of the electronic parts. Component level
maintenance, requiring the most skill, involves find-
ing and correcting defects within malfunctioning
boards.
In addition to three levels of maintenance, there
are three types of maintenance, also in ascending
order of difficulty. Preventive maintenance requires
regularly scheduled and fairly routine procedures
to prevent unit breakdown. Remedial maintenance
is in response to unit malfunctions. Corrective
maintenance involves the redesign of the compo-
nents of a system to meet new needs or to incorpo-
rate new technology.
Both the machinists represented by CTU-101
and the electricians represented by IBEW, Local
26, are eligible for training pertinent to these func-
tions, pursuant to their respective collective-bar-
gaining agreements with the Employer. The IBEW
electricians have taken much greater advantage of
the available training, and as a result the majority
of electricians are able to perform unit, board, and
component level maintenance on even the most
technologically sophisticated computer systems at
the Washington Post. Only 3 of 13 CTU machinists
appear able to perform unit, board, and component
level maintenance, and then only the least sophisti-
cated systems. Some of the electricians, but none of
the machinists, are capable of corrective mainte-
nance. The broader skills and more extensive train-
ing of the IBEW electricians constitute a substan-
tial factor favoring assignment of the work to
them.
4. Economy and efficiency of operations
The CTU machinists have guaranteed lifetime
job tenure with the Washington Post as a result of
the collective-bargaining agreement negotiated be-
tween the Employer and CTU-101 in 1973 and
continuing in the current contract. The lifetime job
guarantee was negotiated in exchange for CTU-
101's relinquishment of the operation of scanners
and VDTs outside the composing room. As a
result of the lifetime job guarantee, should the
work assignment in dispute not be assigned to em-
ployees represented by CTU-101, a number of ma-
chinists would be idle, and others would have little
to do. This aspect of the economy and efficiency of
operations appears to favor the CTU machinists.
However, the multitude of computer and VDT
systems found at the Washington Post has required
that those doing the maintenance and repair be
highly skilled. As discussed earlier, the skill and ex-
pertise of the IBEW electricians in the technical
services department significantly exceeds the skill
and training of the CTU-101 machinists. Following
the installation of a computer system at the Post,
905
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Employer has generally contracted with the
vendor for maintenance services, Frequently in-
cluded in the vendor maintenance contracts are
provisions for side-by-side, hands-on training of
technical services department employees represent-
ed by IBEW, Local 26, in order that these in-house
electricians may begin providing maintenance at
the expiration of the vendor maintenance contract.
The work in dispute here is available for assign-
ment only at that time. The electricians' hands-on
training has permitted the Employer to expedite
the changeover from vendor maintenance to in-
house maintenance, and has resulted in savings esti-
mated at $600,000 to date and projected to be $1.2
million over the next year.
Should maintenance be awarded to the CTU-101
machinists, the Employer would be forced to con-
tinue vendor maintenance slated to be turned over
to IBEW, Local 26, electricians until CTU machin-
ists could be properly trained, and, where mainte-
nance has been turned over to IBEW electricians,
vendor maintenance would have to be reinstituted.
The cost of both continued and resumed vendor
maintenance and of training CTU machinists would
appear to outweigh the inefficiency potentially re-
sulting from the machinists' idleness. Therefore,
economy and efficiency favors an award of the
work to employees represented by IBEW, Local
26.
5. Employer preference
The Employer has assigned the work in dispute
to its employees represented by IBEW, Local 26.
The record indicates that the Employer is satisfied
with this assignment and continues to prefer this
assignment. This factor, although not entitled to
controlling weight, favors an award of the work to
employees represented by IBEW, Local 26.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that the employees represented by IBEW,
Local 26, are entitled to perform the work in dis-
pute. We reach this conclusion relying on all the
factors discussed above. In making this determina-
tion, we are awarding the work in question to em-
ployees who are represented by the International
Brotherhood of Electrical Workers, Local 26,
AFL-CIO, but not to that Union or its members.
The present determination is limited to the particu-
lar controversy which gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute:
Employees who are represented by International
Brotherhood of Electrical Workers, Local 26,
AFL-CIO, are entitled to perform the work of
maintenance of Video Display Terminals at the
Employer's 1150 15th Street N.W., facility in
Washington, D.C., which are not located in the
fourth floor composing room. These include the
299 VDTs on the fifth floor Ray Edit News
System, the 5 VDTs on the Ray Edit News System
found on the fourth floor, the 50 VDTs on the
Norris News System located on the fifth floor, the
single VDT on the Norris News System located on
the fourth floor, the 89 Telcon Portable VDTs, the
171 VDTs on the Classified SII System located on
the sixth floor, the 5 VDTs on the Classified SII
System located on the fourth floor, and the single
VDT on the ADES System which is located out-
side the composing room on the fourth floor.
906