Local 32, The Newspaper Guild

National Labor Relations Board - Board Decisions

Feb 27, 1974

209 N.L.R.B. 263 (N.L.R.B. 1974)

LOCAL 32, THE NEWSPAPER GUILD
Local 32, The Newspaper Guild, AFL-CIO-CLC and
Boston Newspaper Division , The Hearst Corpora-
tion and Boston Typographical Union No . 13. Case
1-CD-343
February 27, 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, follow-
ing charges filed by Boston Newspaper Division, The
Hearst Corporation, herein called the Employer,
alleging that Local 32, The Newspaper Guild,
AFL-CIO-CLC, herein called the Guild, has violat-
ed Section 8(b)(4)(D) of the Act. Pursuant to notice,
a hearing was held in Boston, Massachusetts, on July
16 and 17 and September 24 and 25, 1973, before
Hearing Officer Richard D. Zaiger. All parties
appeared at the hearing, and were afforded full
opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues. Thereafter, the Employer, the Guild,
and the Boston Typographical Union No. 13, herein
called the Typographers, filed briefs in support of
their respective positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated 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. The rulings are hereby
affirmed.
Upon the entire record in this case, including the
briefs, the Board makes the following findings:
1. THE BUSINESS OF 1 HE EMPLOYER
The parties stipulated and the record shows that
the Employer is a Delaware corporation, engaged in
the publication and printing of newspapers, with its
principal place of business located at 959 Eighth
Avenue, New York City, New York. The Employer
publishes and prints a newspaper through its Boston
Newspaper Division, which is located at 300 Harri-
son Avenue. Boston, Massachusetts. The Employer's
annual gross volume of business exceeds $200,000;
and the Employer advertises, within its publications,
nationally sold products and subscribes to interstate
1 All dates herein arc 1972, unless otherwise speufied.
2 The Employer was formerly located at its Winthrop Square plant,
where it published the Record Ameri can
263
news services . Accordingly, we find that the Employ-
er is engaged in commerce within the meaning.of
Section 2(6) and (7) of the Act and it will effectuate
the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Local 32,
The Newspaper Guild, AFL-CIO-CLC, and the
Boston Typographical Union No . 13, are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
In June 1972,1 the Hearst Corporation moved its
publishing operations to Harrison Avenue after
purchasing the Boston Herald Traveler.2 As a result of
the move, the Employer changed from a hot-metal to
a cold-type process which uses photocomposition
equipment. Compositors at the Harrison Avenue
plant, where the Employer publishes the Boston
Herald American, are represented by the Typogra-
phers pursuant to a contract for the period January
1, 1972, to December 31, 1974. The Typographers
also represents compositors at the Boston Globe, the
city's only other daily newspaper. Artists at the
Herald American are represented by the Guild under
a contract for the period January 1, 1972, to
December 31, 1974. At the Boston Globe, artists are
represented by the Boston Globe Employees Associ-
ation.
Based upon past practices at the Harrison Avenue
plant, the Employer awarded certain pasteup work
relating to the production of advertisements to
Herald American artists. In October and December
meetings, union representatives of the Guild and
Typographers orally ratified the award of work
despite the dissatisfaction of some personnel in the
composing room. In mid-February 1973, Malcom
MacKinnon, president of the Typographers, told
William P. Klouda, employee relations manager, that
the compositors demanded jurisdiction of all the
pasteup work. Klouda reaffirmed the earlier agree-
ments, and one week later MacKinnon announced
that the Typographers would move for arbitration. A
notice of the pasteup work assignments (herein
referred to as the Swartzell notice)3 was issued
February 27 by A. H. Swartzell, general manager of
the Herald American. Around March 14, Guild
Secretary Robert Bruner told Klouda that if any
work were given to compositors the Guild would
e The Swartzell notice divided the pasteup work in accordance with the
Employer's understanding of the parties' previous oral agreements.
209 NLRB No. 44
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike. This threat was confirmed in writing on
March 20. On March 21, 1973, the Employer filed a
charge alleging a jurisdictional dispute.
B. The Work in Dispute
The disputed work concerns the processing of
advertisements at the Herald American. After the art
department receives a rough layout from an advertis-
er or ad solicitor, a photocopy is made for the artists'
use. The original rough layout is sent to the
composing room so any text can be set in type.
Copies of illustrations, made by the photoengraving
department, are sent to the art department or
composition department, depending upon their use.
When the artists have completed work on their
photocopy, it is returned to the composing room. The
original pasteup of the ad, or live mechanical, is
stored in the composing room while a proof is sent
for the advertiser to approve. Once the ad is run, it is
returned to the art department as a "dead mechani-
cal" for storage.
We note that the Swartzell notice inadvertently left
out "paste-up art which touches a border" which the
Employer understood to be included in the work
assigned to the artists.
The disputed work is assigned as follows:
The artists are to (1) remove tissues from color
work and paste on the mechanical and do color
breakup; (2) paste up type or art which is to be
pasted onto color work done by the art department;
(3) paste art on art; (4) paste up type which has to be
outlined; (5) file dead mechanicals; (6) paste up type
which has to be positioned in an unnatural manner,
such as on a curve; and (7) paste up art which
touches a border. The compositors are to (1) paste up
any line or group of lines which floats (unattached to
any border); (2) paste up art which floats; (3) paste
up mechanical borders; (4) control all live pasteups;
and (5) paste tissues over photostats for color work
while the artists are working on mechanicals.
C. The Contentions of the Parties
The Typographers contends that the Board should
dismiss the complaint because it has agreed to be
bound by the arbitration procedure in the contract
between the Guild and Employer if the Typogra-
phers contract is also put forward. In the event the
Board does not dismiss the complaint, the Typogra-
phers contends the Board should award the work to
employees represented by it. The Typographers relies
on its contract with the Employer, the ability of
compositors to handle the work more efficiently
since only one department is involved, and the fact
4 International Association of Bridge, Structural and Ornamental Iron
Workers, Local 348, AFL-CIO (Dick Tile and Marble Company, Inc), 193
that some composing room employees at the Herald
Traveler did pasteup and compositors perform
pasteup at the Boston Globe.
The Employer contends that there is no provision
for tripartite arbitration or other voluntary method
of adjustment; therefore, the Board should assert
jurisdiction and award the work to the employees
represented by the Guild. The Employer urges the
Board to uphold its preference because the work
allocation results in efficient operations, the artists
have special training and possess specific skills and
judgments for the tasks, the assigned work conforms
to past practice at the Herald Traveler, and an award
of work to the Typographers would result in job loss
for the artists. The Employer also relies on the
agreements reached between the Guild and Typogra-
phers in October and December which ratified the
work assignments.
The Guild contends that, because it has no
grievance with the Employer, the arbitration proce-
dure under its contract cannot be utilized. Therefore,
the Guild argues, the Board should assert jurisdiction
and uphold the Employer's award of work.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that (1) there is reasonable cause
to believe Section 8(b)(4)(D) has been violated, and
(2) the parties have not agreed upon a method for the
voluntary adjustment of the dispute.
As to (1), the record herein shows that on March
20, 1973, Guild Secretary Robert E. Bruner informed
William P. Klouda, employee relations manager, that
if any of the work assigned to the artists were to be
transferred "out of the Guild's bargaining unit, either
by voluntary act or pursuant to an arbitration
award," the Guild would strike to regain such work.
In view of this express threat by the Guild, we find
that there is reasonable cause to believe that a
violation of 8(b)(4)(D) has occurred.4
As to (2), we find that there is no agreed-upon
method for voluntary adjustment of this dispute. The
contract between the Typographers and the Employ-
er provides that differences ansing under the
contract shall be referred to the Local Joint Board
for resolution if the representatives of the two parties
cannot agree informally. There is no provision for
tripartite arbitration. In addition, Typographers
president, Malcom MacKinnon, stated to William
Klouda that he refused to include the Guild in any
arbitration proceeding he initiated under the Typog-
raphers contract.
NLRB 769,770
LOCAL 32, THE NEWSPAPER GUILD
The Guild contract provides that where there is a
jurisdictional dispute between the Guild and any
other union the Guild will attempt to settle the
conflict with the publisher and the other union. If no
settlement can be reached informally, the Guild and
the Employer are empowered to submit the entire
dispute to arbitration in accordance with section 8 of
the contract which provides for settlement of
grievances "arising from the application and inter-
pretation" of the Guild contract. Other unions may
be invited to participate, but their refusal does not
prevent the Guild and Employer from reaching a
binding solution. The impact of the entire clause is
that only when the Guild has a jurisdictional dispute
with the Employer under its contract will it resort to
arbitration. As Guild Secretary Robert Bruner
indicated, the Guild agrees with the Employer's
award of work and therefore has no grievance to
activate the settlement machinery in its contract.
Another impediment to arbitration under the Guild
contract is that the Typographers has agreed to
participate only if its contract is also put forward, a
condition which is not provided for in the Guild's
arbitration procedure.
An agreed-upon method for the voluntary adjust-
ment of a jurisdictional dispute was found not to
exist in New York Mailers' Union No. 6, International
Typographical Union, AFL-CIO (The New York
Times Company)5 because, although each union's
contract provided for arbitration, only the union and
employer under contract were bound; there was no
way to affect the second union. In addition, the
Board did not find that there was a voluntary
method of settling the dispute because the Mailers
refused to submit to tripartite arbitration even
though the Deliverers contract provided for it.
In San Diego Stereotyper's Union No. 82, affiliated
with the International Stereotypers and Electrotypers
Union of North America (Union-Tribune Publishing
Company),6 the Board was faced with a similar
situation where "the arbitration provisions of their
respective contracts do not provide an agreed-upon
method for voluntary adjustment of the dispute
which could culminate in a single determination
binding on all parties." 7 The Board found that the
unions were bound only by their respective contracts
and therefore would not be affected by arbitration
initiated under another union's contract. In Local
1184, Southern California District Council of Laborers
(11. M. Robertson Pipeline Constructors)8 the Board
reiterated that "the voluntary adjustment must bind
137 NLRB 665
6 201 NLRB 893
v Id at sec III, D.
8 192 NLRB 1078, 1079
9 Id at 1079
265
all disputing unions as well as the Employer in order
to come within the meaning of voluntary settlement
as set out in Section 10(k)." In that case, the fact that
each union's contract provided for arbitration of
disputes arising between the contracting parties did
not "support the conclusion that all parties have
agreed to be bound by a single tripartite arbitration
proceeding, or to a means by which a final and
binding adjustment could be reached."9 In the
present case, as in the cases cited above, there is no
single agreed-upon method to arbitrate the dispute
which would involve the interpretation and applica-
tion of both contracts. Accordingly, we find this
matter is properly before the Board for determina-
tion under Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after
giving due consideration to various factors.'°
The Board has held that its determination in a
jurisdictional dispute is an act of judgment based on
commonsense and experience reached by balancing
those factors involved in a particular case.' I
The following factors are relevant in making the
determination of the dispute before us.
1. The collective-bargaining agreements
The Guild contract, agreed upon January 5, 1973,
effective January 1, 1972, to December 31, 1974,
covers employees in the advertising business circula-
tion and building service departments, as well as
helpers in the composing room. Section 14 of the
Guild contract, which lists the salary for advertising
makeup men, indirectly refers to pasteup work;
otherwise, there is no specific reference to pasteup
work in the contract. The Guild's jurisdiction is
defined only as "work normally performed within
... the bargaining unit," but there is a provision
preventing any decrease in the number of regular
full-time artists due to the introduction of phototype-
setting machines. The Typographers contract covers
all composing room work. Section 9-04 provides that
any pasteup work which was done outside the
composing room will be performed by composing
room personnel "when deemed practicable by the
Publishers and proper equipment is installed ...."
The exact nature of the pasteup work is not defined
in the contract and the Employer has announced
what it deems "practicable" in the Swartzell notice.
We find that the collective-bargaining agreements do
10 NLRB v Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO I Columbia
Broadcasting System ], 364 U.S 573 (1961)
11 International Association of Machinists, Lodge No 1743, AtL-CIO (J
A Jones Construction Compare ), 135 NLRB 1402
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not favor either Union as we are unable to conclude,
upon examination of- the pertinent provisions of the
contracts, that either expressly covers the work in
dispute.
2. Company and industry practice
When the Employer moved to Harrison Avenue, it
directed the head of the art department to assign
pasteup work so it would be consistent with past
practices at the Herald Traveler. At the Employer's
former plant location at Winthrop Square, artists did
pasteup work.
Leslie Van Buskirk, an artist formerly employed at
the Herald Traveler, testified that the Swartzell notice
accurately reflected the division of work at the
Herald Traveler. Although Lawrence F. Mardon,
Typographers witness, testified that Herald Traveler
compositors did pasteup, Mardon admitted that
artists did some work in the Swartzell notice and that
for the past few years the work allocation has been in
a state of flux. We find that company practice favors
the position taken by the Guild and the Employer.
Because the Guild does not represent any employ-
ees at the Boston Globe, its contract is not a
consideration in assigning work at the Globe.
Although Frank Kenney, color coordinator at the
Globe and a Typographers witness, testified that the
compositors do the mechanical pasteup, he reported
that artists do art work such as drawing fancy
borders. Kenny also indicated that a different
pasteup process for color work is used at the Globe.
Therefore, we conclude that area practice is not a
reliable factor for the determination of work in this
case.
3. Economy, efficiency of operations, skills,
and possible job loss
Both Arnold Black, art department head, and
Robert Donahue, composing room superintendent,
testified that the assignment of pasteup work to
artists represented by the Guild is efficient and
economical. Arnold Black reported that on the
occasions where compositors did the artists' work the
advertisements were poorly assembled and had to be
redone. According to Black, even though the same
technique is used in pasteup work by the compositors
and artists, the artists possess the artistic judgment
necessary to the production of a satisfactory adver-
tisement.
12 In Portland Typographical Union, Local 66, a/w International Typo-
graphical Union, AFL-CIO (Guy Gannett Publishing Co), 209 NLRB No. 42.
issued this same day, certain pasteup work was awarded to the employees
represented by the Typographers. In that case, a specific provision in the
contract provided that if the Employer changed to photocomposition,
If the work is given to the compositors, a number
of artists would be jobless since 60-70 percent of the
art department time is spent on pasteup work, and
approximately half the artists are employed full time
doing advertisement pasteup. With the present work
assignment, no compositor would be dismissed. We
find, therefore, that economy, efficiency of opera-
tions, skills, and possible job loss favor assignment to
employees represented by the Guild.
Conclusions
Upon the entire record ,in this case, and after full
consideration of all relevant factors, particularly
Employer practice , economy and efficiency of
operations , possible impact on jobs of art department
employees, and the Employer 's assignment and
satisfaction with their performance , we conclude that
the art department employees of the Employer who
are represented by the Guild are entitled to perform
the work in question , and we shall award the
disputed work to them . In making this determina-
tion , we award the work to the employees of the
Employer who are represented by Local 32, The
Newspaper Guild, AFL-CIO-CLC, but not to that
Union or its members. Our present determination is
limited to the particular controversy which gave rise
to this proceeding.12
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
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
Employees of the Boston Newspaper Division, The
Hearst Corporation, who are represented by Local
32, The Newspaper Guild, AFL-CIO-CLC, are
entitled to perform all work relating to the pasteup of
advertisements at the Employer's Harrison Avenue
plant as follows: (1) remove tissues from color work
and paste on the mechanical, and do color breakup;
(2) paste up type or art which is to be pasted onto
color work done by the art department; (3) paste art
on art; (4) paste up type which has to be outlined; (5)
file dead mechanicals; (6) paste up type which has to
be positioned in an unnatural manner, such as on a
curve; and (7) paste up art which touches a border.
employees represented by the Typographers would be awarded pasteup
work In addition, only two artists , spending 5 percent of their time on
pasteup , were involved. We find these factors distinguish Portland from the
Decision herein