N.Y. Lithographers Union Number One-P

National Labor Relations Board - Board Decisions

Feb 1, 1968

169 N.L.R.B. 606 (N.L.R.B. 1968)

606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York Lithographers & Photo-Engravers' Union
Number One-P , Photo-Engravers International
Union , AFL-CIO' and Sterling-Regal Engraving
Co., Inc. and Local 1, Amalgamated Lithog-
raphers of America , International Typographical
Union, AFL-C10.2 Case 2-CD-361
February 1, 1968
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing a charge filed on October 11, 1967, by
Sterling-Regal Engraving Co., Inc., herein called
the Employer or the Company, alleging that New
York Lithographers & Photo-Engravers' Union
Number One-P, Photo-Engravers International
Union, AFL-CIO, herein called Photoengravers,
or Respondent, had violated Section 8(b)(4)(ii)(D)
of the Act. Pursuant to notice, a hearing was held
before Hearing Officer Jacques Schurre on
November 13 and 14, 1967. 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. The
Employer, the Respondent, and Local 1, Amalga-
mated Lithographers of America, International
Typographical Union, AFL-CIO, herein called
Lithographers, have filed briefs herein, 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
powers in connection with this case 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 entire record in this case, including the
briefs, the Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is engaged in New York City in
the production of photoengravings and mats, plates
for offset and letterpress printing, and in stereotyp-
' The name of the Respondent appears as amended at the hearing.
8 The name of the Lithographers appears as amended at the hearing.
3 The lithographic department is operated under the name of Town Off-
set Plate Service, a Division of Sterling-Regal Engraving Co., Inc Town
Offset, originally an independent company operating at another location,
was purchased by the Employer about 2 years ago, and its entire operation
was transferred to its present location. Completely owned, controlled, and
managed by the Employer, it is operated as a division for accounting pur-
poses only.
ing. Its gross annual business exceeds $4 million,
and during the past year it shipped goods valued in
excess of $50,000 to customers outside the State of
New York. We find that the Employer is engaged
in commerce within the meaning of the Act and that
it will effectuate the policies of the Act to assert ju-
risdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated and we find that Photoen-
gravers and Lithographers are both labor organiza-
tions within the meaning of the Act.
III. THE DISPUTE
The dispute herein arises out of the Employer's
purchase of two RCA electronic color scanners and
its assigning the operation of one of them to em-
ployees represented by Lithographers.
The Employer occupies space in a building at 304
East 45th Street. Its photoengraving (letterpress)
department is located on the sixth floor, where the
production employees are represented by Lithogra-
phers.-3 Each department has been using the tradi-
tional method for making plates, beginning with the
camera, for letterpress or offset color printing as the
case may be.
In the latter part of March or early April 1967,
the Employer purchased an RCA electronic color
scanner which was installed on the eighth floor of
its premises. The scanner is designed to replace the
conventional camera method of color separation. A
transparency is mounted on a revolving cylinder,
and by means of pushbutton controls and the ad-
justment and setting of certain dials, the desired
color separations are made electronically. The
negatives, or positives, produced, depending on
how the dials are adjusted, can be used for making
plates for offset, letterpress, or gravure printing. On
April 21 the Employer notified Photoengravers that
it had installed the RCA scanner in the photoen-
graving department, following which Van Cott, the
Union's president,4 met with Tashjian, the Com-
pany's president. They discussed the operation of
the scanner and reached an agreement thereon. The
Respondent accepted the Employer's assignment
of the operation of the RCA scanner to employee
Baumler,5 and it was agreed, inter alia, that the
products of the scanner could be used on an in-plant
basis only, it being understood that the term "in-
plant" included the Employer's offset division.
4 Van Cott is also International counsel for the Atlantic Region of
Photo-Engravers International Union.
5 At the time of the assignment , Baumler, an experienced and skilled
photographer, was employed in the photoengraving department. He had
taken a 5-week course in the operation of the RCA scanner. Later,
Baumler was elevated to a managerial position and he was replaced at the
scanner by another photographer in the photoengraving department.
169 NLRB No. 92
N.Y. LITHOGRAPHERS UNION NUMBER ONE-P " 607
In the latter part of September, the Employer
purchased a second RCA scanner, intended for use
in the production of offset plates, and installed it on
the eighth floor near the first scanner. Employee
Franza, a photographer in the offset division, who
had in the meantime taken a 3 weeks' instruction
course, was assigned to operate it. Within the next
day or two, Van Cott called on Tashjian and made
known his objection to the scanner in the photoen-
graving department with a member of Lithog-
raphers assigned to operate it. He stated that if the
Employer was going to give Lithographers jurisdic-
tion over the scanner, it should be taken down to
the sixth floor and there would be no problem;
otherwise, because of its location on the eighth
floor, Photoengravers had jurisdiction. Tashjian ex-
plained that there was presently no room for the
scanner on the sixth floor, that it was on the eighth
floor temporarily, and that as soon as space became
available on the sixth floor the scanner would be in-
stalled there. Van Cott told Tashjian that he would
fight him all the way and that he (Tashjian) would
get his instructions in the mail. On this visit Van
Cott also told employee Franza, in Tashjian's
presence: "I give you 30 days to make up your
mind. You either join our union or I won't allow
you to operate this machine here. It's got to be
taken out or our man has to operate the machine."
On October 3, Respondent wrote the Employer
charging that the Company was in violation of its
collective-bargaining agreement with Photoen-
gravers in that it had "installed equipment and
adopted work processes designed to substitute
work now being'performed by covered employees."
After citing the sections of the agreement allegedly
violated, the letter went on to say, "Failing to do so,
we will be compelled to take any and all action
available to us strictly to enforce the Contract." On
October 5, Photoengravers addressed a "Special
Emergency Notice" to its Chapel Committees and
members which was posted on the bulletin board in
the photoengraving department. In substance, as
set forth in the notice, the Respondent advised the
membership that in view of the Company's viola-
tion of the collective-bargaining agreement by in-
stalling "new equipment," it "will take every action,
including economic action, as advised by council
[sic}" against the Employer to insure that the terms
of the contract are strictly enforced. The notice
stated that at the regular meeting to be held on
November 6, "it shall be a special order of business
... to approve a recommendation authorizing the
payment of all expenses incurred and benefits paid
in enforcing the work preservation provisions of our
contract." Van Cott admitted that "economic ac-
tion ," referred to in the notice, included strike ac-
tion. He was not asked to explain under what cir-
cumstances the membership would be asked to ap-
prove a recommendation authorizing the payment
of "benefits." According to Tashjian, himself a
member of Respondent organization, he, as well as
the employees, interpreted the notice as a strike
call.
A. Contentions of the Parties
Photoengravers claims that the evidence does not
disclose that it threatened, coerced, or restrained
the Employer to assign the disputed work to its
members rather than members of Lithographers. As
to the merits of the dispute, it claims that its mem-
bers are entitled to the disputed work on the basis
of its agreements with the Employer, past practice,
custom in the industry, location of the machinery,
and similarity of skills involved. Photoengravers
concedes that it would not have jurisdiction if the
scanner were moved to the sixth floor.
Lithographers claims jurisdiction based on its
contract with the Employer, the Employer's assign-
ment of the work to it and satisfaction with the work
performed, the relative impact upon employee job
rights, traditional work jurisdiction, and skills
required for the work.
The Employer supports the claim of Lithog-
raphers and in addition it argues that this claim is
further supported by considerations of efficiency
and economy, and the temporary nature of the
present location of the offset scanner.
B. Applicability of the Statute
Before the Board proceeds with a determination
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.
There can be little question on the record that the
object of Respondent's claims was to have the work
being done by a member of Lithographers assigned
to a member of Respondent, the question being
whether or not the Respondent resorted to threats,
coercion, or restraint to achieve this object. On the
basis of the statements made by Van Cott to Tashji-
an and Franza at the Employer's premises in Sep-
tember and on the basis of Photoengravers' letter of
October 3 and the "Special Emergency Notice" of
October 5, which, taken together, we interpret as a
threat to strike to force the desired result,6 we are
satisfied that there is reasonable cause to believe
that a violation of Section 8(b)(4)(ii)(D) has oc-
curred, and we find that the dispute is properly be-
fore the Board for determination under Section
10(k)-of the Act.
6 Unlike the recently decided case of Lithographers and Photoen-
gravers, International Union, Local 23P , AFL-CIO (Buyer's Guide, Inc.,
dlbla News Publishing Company), 167 NLRB 958, the threatened action
here cannot reasonably be interpreted as limited to action under the
grievance machinery provided under the contract
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. 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 relevant factors.
The Board has held that its determination in a ju-
risdictional dispute case is an act of judgment based
upon commonsense and experience and a balancing
of such factors.7
Certain of the usual factors considered by the
Board in these cases, such as certifications, con-
tracts, and industry and area practice, provide little
basis for determining the instant dispute. Thus, no
evidence was received as to any Board certification
relative to the disputed work; the Employer's con-
tracts with Photoengravers and Lithographers do
not constitute a persuasive basis for an award, as
they include conflicting assignments of the work in
controversy, although we observe that the provi-
sion relied on by Lithographers is more on point;
the agreement between the Employer and Photoen-
gravers with regard to the permissible "in-plant"
use of the products of the photoengraving scanner,
which includes the offset division, cannot be re-
garded as an assignment of scanning work for offset
processing to photoengravers, since the agreement,
in and of itself, falls far short of showing an inten-
tion to effect such a clear deviation from the prior
plant practice of having the work intended for offset
printing done by lithographers. As for the factors of
area and industry practice, they are inconclusive
since the evidence adduced shows merely that both
Photoengravers and Lithographers, and their af-
filiates, represent employees performing scanning
for offset processes.
1. Impact upon employee job rights
While there is no established prior plant practice
for the operation of a scanner in the production of
offset plates, it is clear that the whole offset process
was, prior to the installation of the scanner, within
the jurisdiction of Lithographers. It is also clear that
an award of the work in dispute would cost mem-
bers of Photoengravers no jobs, since the new
process would augment their overall workload,
whereas award of the disputed work to photoen-
gravers may, conceivably, eventually eliminate
some jobs of lithographers. Accordingly, we find
that this factor supports the claim of Lithogra-
phers. s
2. Skills required for the job
The basic process of making color separations
' International Association of Machinists, Lodge No 1743, AFL-CIO
Q.A. Jones Construction Company), 135 NLRB 1402, 1411.
8 The Denver Photo-Engravers Union No. 18 (Denver Publishing
Company), 144 NLRB 1408,1412-13.
with the scanner is the same whether they are ulti-
mately used for lighographic (offset) or photoen-
graving (letterpress) plates. However, the record
shows that there is considerably more opportunity
for color adjustment after the scanning stage in the
photoengraving process than in lithography. For
this reason the work done in the scanning stage is
more critical in lithography, allowing a smaller mar-
gin for error than is true for the equivalent stage of
the photoengraving process, where substantial cor-
rections can be made at subsequent stages. The
scanner being an advance in the technology of the
printing industry, photoengraving cameramen and
lithography cameramen, even though experienced
in the old process, require additional instruction in
order to operate the scanner in place of the camera.
Nevertheless, the record shows that with respect to
the skills required to produce color separations for
lithography plates by use of the scanner, the ex-
perience gained in producing color separations for
lithography plates by camera is more valuable,
because of the degree of care required, than the ex-
perience gained in producing them for photoengrav-
ing plates by camera. We also note the Employer's
satisfaction with the work performed by the litho-
graphic cameraman assigned to the scanner. We
find that Lithographers' claim that the lithographic
cameraman exercises superior skill is supported by
the record.
3. Economy and efficiency
From the standpoint of economy and efficiency,
there is obvious advantage to having the work in
dispute performed by an employee possessing su-
perior necessary skills, as found above. On the
other hand, the Employer admits that the location
of the scanner for lithographic production on the
eighth floor, rather than the sixth floor, where the
rest of the lithography department is located, is not
economical. Photoengravers places great emphasis
upon the matter of location, claiming that if the
work is performed on the eighth floor it belongs to
it regardless of whether it would have any claims to
it were it located on the sixth floor. But nothing in
the record supports a claim of jurisdiction based on
location alone. Moreover, it is apparent that as long
as the Employer has no room on the sixth floor for
the scanner, placing it on a nearby floor is the most
economical solution under the circumstances.9
Accordingly, we find that the factors of economy
and efficiency favor Lithographers' claim to the
work in dispute.
' Even if Photoengravers had some territorial claim to the work areas of
the eighth floor, such claim would have to be weighed against the Em-
ployer's legitimate interest in temporarily allocating certain space to an
operation usually performed elsewhere while seeking permanent space for
such operation.
N.Y. LITHOGRAPHERS UNION NUMBER ONE-P 609
Conclusions
Upon consideration of all pertinent factors ap-
pearing in the entire record , we shall assign the
work in dispute to the Employer's em-
ployees represented by Lithographers. _ The Em-
ployer's assignment of this work is consistent with
its own past practices with regard to assignment of
the function now accomplished by the operator of
the scanner, and effects the least disturbance of em-
ployees' job rights. The assignment is further sup-
ported by the factors of skill and economy and effi-
ciency. In making this determination, we are assign-;
ing the disputed work to employees of the Em-
ployer who are represented by Lithographers but
not to that Union or its members.
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 the
dispute:
1. Employees employed by Sterling -Regal En-
graving Co ., Inc., New York, New York, who are
currently represented by Local 1, Amalgamated
Lithographers of America , International Typo-
graphical Union , AFL-CIO, are entitled to operate
the RCA electronic color scanner used in the
process of producing plates for the Employer's
lithographic department.
2. New York Lithographers & Photo-En-
gravers' Union Number One-P , Photo-Engravers
International Union , AFL-CIO, is not , and has not
been, entitled, by means proscribed by Section
8(b)(4)(D) of the Act, to force or require the Em-
ployer to award the above work to its members or
employees it represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute , New York Lithog-
raphers & Photo-Engravers ' Union Number
One-P , Photo-Engravers International Union,
AFL-CIO, shall notify the Regional Director for
Region 2 , in writing , whether it will or will not
refrain from forcing or requiring the Employer, by
means proscribed by Section 8(b)(4)(D ), to award
the work in dispute to its members rather than to
employees represented by Lithographers.