Portland Typographical Union

National Labor Relations Board - Board Decisions

Feb 27, 1974

209 N.L.R.B. 258 (N.L.R.B. 1974)

258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Portland Typographical Union , Local 66 a/w Interna-
tional Typographical Union , AFL-CIO and Guy
Gannett Publishing Company and Portland News-
paper Guild, Local 128 of the Newspaper Guild,
AFL-CIO-CLC. Case 1-CD-347
February 27, 1974
DECISION AND DETERMINATION OF
DISPUTE
tive period, the Employer's gross volume of business
exceeded $200,000. It advertises nationally sold
products within its pages and subscribes to interstate
news services. Accordingly, we find, as the parties
have stipulated, that the Employer 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
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Guy Gannett Publishing Compa-
ny, hereinafter called the Employer, alleging that
Portland Typographical Union, Local 66 a/w Inter-
national Typographical Union, AFL-CIO, herein
called the Typographers, has 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 represented by the Typographers rather
than to employees represented by Portland Newspa-
per Guild, Local 128 of the Newspaper Guild,
AFL-CIO-CLC, herein called the Guild.
Pursuant to notice, a hearing was held before
Hearing Officer Richard D. Zaiger on October 15
and 16, 1973, in Portland, Maine. All parties
appeared at the hearing and were afforded full
opportunity to be heard, to examine and cross-
examine witnesses, and to present evidence bearing
on the issues. Thereafter, the Employer and the
Guild filed briefs.
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 rulings of the Hearing
Officer made at the hearing and finds that they,are-
free from prejudicial error. The rulings are hereby
affirmed.' The Board has considered the entire
record in this case and hereby makes the following
findings:
1. THE BUSINESS OF THE EMPLOYER
Guy Gannett Publishing Company is a Maine
corporation engaged in the publication and printing
of newspapers. During the past 12-month representa-
I
for the Guild moved at the hearing to strike the testimony of
Robert Beith, the Employer 's publisher , with respect to conversations he
held with J . W Blatz, the Newspaper Guild's director of field operations, on
grounds of hearsay Thereafter , the parties stipulated that , in lieu of
continuing the hearing in order to call Mr . Blatz as a witness, the Guild
would obtain his affidavit and that both the Employer and the Typogra-
phers would waive cross-examination In view of this stipulation , we treat
209 NLRB No. 42
The parties stipulated, and we find, that the
Typographers and the Guild are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute consists of all pasteup and
related work which will be performed at the
Employer's Portland, Maine, newspaper plant upon
conversion from the-present hot-metal production
method to a cold-type process.2
B. Background and Facts of the Dispute
The Guild and the Typographers have represented
separate units of certain of the Employer's employees
for at least 20 years.
Prior to the fall of 1973,3 the Employer utilized the
hot-metal process in its printing operation. Under
this system, metal plugs of type are arranged by
printers, represented by the Typographers, into lines
which are used to make impressions on celluloid
mats. The mats, in turn, receive an injection of hot
metal which is formed into a semicylindrical plate. It
is from this plate that the actual newspaper page is
printed. Pasteup work, the physical pasting together
of pieces of paper for composition purposes, is
required only for certain types of art work when the
hot-metal process is utilized in printing. This work
has been done exclusively by the Employer's artists,
who are represented by the Guild, and involves
approximately 5 percent of their working time.
In June 1972, the Employer decided to convert
from the hot-metal production process to cold type, a
decision which had been under consideration since
the 1950's. Upon conversion to the cold-type
method, every newspaper page will be composed by
physically pasting up material produced by a
photocomposition machine. The page will then be
the motion as moot and it is, therefore, denied
2 Although the Guild originally claimed all pasteup work to be done
under the new process, at the hearing. and in its brief, the Guild indicated it
was claiming only pasteup work in connection with advertising . However,
as there was no agreement on the record to limit the "work in dispute," it
remains as described above
7 All dates are in 1973 unless otherwise indicated
PORTLAND TYPOGRAPHICAL UNION
photographed, and the photograph used to make the
plate for the printing press.
The Employer's contract with the Typographers
has, since 1956, contained a clause providing that in
the event of the introduction of the cold-type process
all pasteup work would be assigned to the Typogra-
phers who, in turn, would provide the Employer with
trained journeymen and apprentices. The contract
between the Employer and the Guild does not
identify the specific job functions within the Guild's
jurisdiction, but does provide that the Guild's
jurisdiction shall include all work similar in skill or
function to that performed by Guild employees
during the contract term.
After having orally informed both Unions of its
decision to convert to the cold-type process, the
Employer on January 12 notified the Typographers
by letter of its conversion timetable and reminded
the Typographers of its contractual obligation to
provide "partially trained journeymen and appren-
tices" to perform the pasteup work. By letter dated
February 12, the Employer informed the Guild of its
assignment of all pasteup work to the Typographers.
On March 12, the Guild submitted a written
grievance to the Employer, alleging that by assigning
all pasteup work to the Typographers the Employer
was violating its contract with the Guild. The
Employer on March 16 wrote to the Guild acknowl-
edging the Guild's letter, but declining to follow the
contractual grievance and arbitration procedure
because an arbitration award under the Guild
contract would not settle the matter as it would not
be binding on the Typographers?
Thereafter, on March 21, the Guild filed unfair
labor practice charges with the Board, alleging that
the Employer had violated Section 8(a)(1) and (5) of
the Act by refusing to participate in a grievance
meeting. The Employer, on March 28, filed charges
alleging that the Guild had violated Section
8(b)(4)(D) of the Act by its conduct. Both the Guild's
and the Employer's charges were dismissed by the
Regional Director for Region 1 on July 27.
In the interim, the Typographers had learned of the
Guild's claim and, in a letter to the Employer dated
April 25, stated in pertinent part:
Please be advised that if any work assigned to
Portland Typographical Union No. 66 is taken
away from us we will consider this a violation of
our contract and will take any economic action,
including strike, which is legally open to us.
On April 30, the Employer filed the instant charge
259
alleging that the Typographers, by the letter quoted
above, violated Section 8(b)(4)(D).
C. Contentions of the Parties
The Guild contends that the charge herein should
be dismissed and the notice of hearing quashed on
the grounds that (I) no reasonable cause exists to
believe that Section 8(b)(4)(D) has been violated, and
(2) the dispute is not ripe for 10(k) adjudication
because the Guild has not had the "opportunity to
ascertain the Employer's position, to obtain informa-
tion and, [sic] to come to some decision as to the
merits of its grievance." As to the merits of the
dispute, the Guild contends that, on the basis of its
contract, and the Employer's past practice, all
pasteup work involving advertising should be as-
signed to the employees whom it represents.
The Employer contends that the April 25 letter
from the Typographers constituted coercion or the
threat of coercion within the meaning of Section
8(b)(4)(D) and that an adjudication under Section
10(k) is necessary to resolve the dispute. With respect
to the merits of the dispute, the Employer contends
that (1) it is contractually obligated to assign the
work to the Typographers, (2) the printers represent-
ed by the Typographers possess the necessary
measuring, sizing, and placement skills to do all
pasteup work under the new process while the
employees represented by the Guild do not, and (3)
economic considerations with respect to the work-
flow in the composing room require that all pasteup
work be done by printers.
D. Applicability of the Statute
Before the Board may proceed to the 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 that Section 8(b)(4)(d) has been violated,
and (2) the parties have not agreed upon methods for
the voluntary adjustment of the dispute.
As to (1), above, the record shows that, after
learning that the Guild was claiming the disputed
work, the Respondent, on April 25, wrote to the
Employer stating that, if the work previously
assigned to it were reassigned to the Guild, the
Typographers would take "any economic action,
including strike, legally open to us." The Guild
contends that this statement does not constitute
reasonable cause to believe that Section 8(b)(4)(D)
has been violated, basing its argument on the
Typographers use of the qualifying phrase "legally
open to us," which, the Guild argues, demonstrates
an explicit disinclination to take any unlawful action.
I Neither the Typographers nor the Guild contract provides for tripartite
arbitration
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the Guild, since a strike is not a course
of conduct legally open to the Typographers under
Section 8(b)(4)(D), the statement is self-contradicto-
ry and should not be construed "as a direct and
unambiguous threat" to engage in conduct pros-
cribed by that section of the Act.
In support of its above contention, the Guild cites
General Teamsters Local No. 162, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Independent
(B. P. John Furniture Corporation), 144 NLRB 536. In
that case, the only evidence of unlawful coercion was
a vague statement by respondent's agent at a meeting
with the employer about doing or learning something
"the hard way" unless employees represented by the
respondent were assigned the disputed work. The
Board there said that in order to show reasonable
cause that Section 8(b)(4)(D) had been violated "the
evidence must relate to illegal conduct or speech of
the Respondent or its representatives."5 The Board
then found that "the hard way" phrase was too vague
and insubstantial to support a finding of reasonable
cause and therefore quashed the notice of hearing.
The Guild also cited International Association of
Machinists, AFL-CIO, (Carling Brewing Company,
Inc. (Atlanta Plant)), 136 NLRB 1216, in which the
Board found that respondent's statement that it
would take whatever "action it deemed necessary" if
the employer changed an existing work assignment
did not warrant an inference that respondent
intended to engage in unlawful conduct.
We think the cases relied upon by the Guild are
distinguishable from the instant case. In both cases,
the respondent unions did not specify or even hint at
the kind of action they intended to take and surely
they did not indicate any intention to engage in a
strike or in a refusal to perform services. The
statements in these cases, because of their ambiguity,
could not properly be characterized as threats to take
unlawful action in support of a proscribed object.
In the instant case, the Typographers, in threaten-
ing "any economic action, including strike," make
sufficiently clear that a strike was one of the means
of pressure being contemplated and thus there can be
no ambiguity of the nature referred to in the above-
described precedents. The only issue, then, is whether
the added qualification "which is legally open to us"
is a sufficient reassurance to dispel the effect of the
plainly stated threat to strike. We think that it is not.
A lay reader of the Typographers letter would, we
S General Teamsters Local No 162, supra at 544.
6 Printing Trades Specialty Local No 531, International Printing Pressmen
and Assistants ' Union of North America AFL-CIO (George Banta Company,
Inc), 201 NLRB 255.
r The Guild's motion to defer the proceeding to arbitration was referred
to the Board for ruling As noted supra, the record shows there is no
provision for tripartite arbitration in the collective -oargaining agreements of
think, hardly be reassured by the possibility that the
Typographers could be expected to conclude that a
strike was illegal, and that therefore it would not be
engaged in. The suggestion is, indeed, quite the
reverse-for why would there have been any refer-
ence to a strike in the threatened action at all, if the
Typographers had already concluded that a strike
would be foreclosed by its known illegality? The
reasonable inference, in our view, for the reader to
draw was, instead, that the Typographers considered
a strike to be in its arsenal of usable weapons, and
that the reference to "legally open" was only a vague
qualification, not providing the kind of assurances
which would substantially qualify or nullify the
plainly stated strike threat.
Accordingly, we find that reasonable cause exists
to believe that Section 8(b)(4)(D) of the Act has been
violated.6
As to (2), above, it is clear from the record that
there is no agreed-upon method for the voluntary
adjustment of the dispute which is binding upon all
of the parties.? Accordingly, we find that the dispute
is properly before the Board for determination 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 disputed work after giving
due consideration to various relevant factors, includ-
ing the following:
1. Certification and collective-bargaining
agreements
The record does not indicate whether either the
Guild or the Typographers has ever been certified by
the Board as the representative of any of the
Employer's employees.
As discussed supra, the Employer's contract with
the Typographers has, since 1956, provided that in
the event the Employer converted its production
method to the cold-type process all pasteup work
would be assigned to printers represented by the
Typographers. The contract between the Employer
and the Guild,8 while not specifying precise jobs to
be performed by Guild members, has provided for
Guild jurisdiction over "[a]ny kind of work similar in
skill, or performing similar function as the kind of
work presently performed in [the] unit." This
language clearly encompasses all pasteup work in
either labor organization with the Employer Moreover , both the Employer
and the Typographers indicated on the record their refusal voluntarily to
arbitrate the dispute Since arbitration cannot resolve the instant dispute,
the Guild 's motion is hereby denied.
8 Although the Employer's collective-bargaining agreement with the
Guild expired in 1972 , at the time of the hearing the parties were honoring
its provisions during negotiations for a new contract.
PORTLAND TYPOGRAPHICAL UNION
connection with advertising inasmuch as all such
work was done prior to conversion by the artists
represented by the Guild. It does not, however,
encompass all of the pasteup work necessitated by
the Employer's conversion to the cold-type method
of production.
Since the Employer's agreement with Typogra-
phers specifically covers all of the pasteup work in
dispute, while its contract with the Guild does not,
we find that the contracts, while not determinative,
favor award of the disputed work to employees
represented by the Typographers.
2. Employer and area practice
There is no employer practice with respect to
pasteup work under the cold-type process since the
conversion to the new system was not complete as of
the date of the hearing. However, the small amount
of pasteup in connection with advertising which was
required under the hot-metal system was done by the
two artists represented by the Guild. Nonetheless, it
is undisputed that the volume and importance of
pasteup work will vastly increase when the conver-
sion to the cold-type process is complete as every
page of the newspaper will be composed by this
method. Therefore, while the factor of employer
practice favors the Guild's claim, we accord it little
weight in making our determination.
As to area practice, an international representative
of the Typographers testified without contradiction
that there are more than 20 newspapers in the New
England area which have converted to the cold-type
process. All but one of these newspapers, Foster's
Daily Democrat, have collective-bargaining agree-
ments covering certain employees with either the
International Typographical Union or one of its
locals. Five of these newspapers also have contracts
covering certain other employees with the Newspa-
per Guild or one of its locals. At all but 2 of the 20 or
more newspapers the pasteup work is performed by
employees represented by the International Typo-
graphical Union or one of its locals. The Guild
presented evidence that at Foster's Daily Democrat
all production and maintenance employees, mclud-
ing those who perform pasteup, are represented by a
local of the Newspaper Guild. The Guild also
presented evidence that at the Boston Herald
American pasteup is performed both by employees
represented by the Newspaper Guild and employees
represented by the International Typographical
Union.9
261
Based on the foregoing, we find that area practice
favors assignment of the disputed work to employees
represented by the Typographers.
3. Skills, efficiency, and economy
It is undisputed that the printers employed by the
Employer have specialized skills required for news-
paper composition, while the employees represented
by the Guild do not.
According to the uncontradicted testimony of two
of the Employer's witnesses, only 50 percent of the
worktime of the employees to whom the disputed
work is ultimately assigned will be spent in doing
pasteup. The Employer intends that for the remain-
der of the time these employees will be engaged in
the performance of other composing room duties.
The Employer further envisions that there will be no
need to hire additional employees to do pasteup
since it already has a sufficient complement of
printers who can perform other work in the compos-
ing room and are being trained in the skills required
for pasteup. However, if the work in dispute is
assigned to the employees represented by the Guild,
the Employer will have to hire 32-35 additional
employees in order to have a sufficient complement
to handle pasteup during peak periods. These same
employees will then be idle the 50 percent of their
time which is not spent in doing pasteup, since by
contract they are not equipped or entitled to perform
other composing room functions. Similarly, the
printers represented by the Typographers, who in
any case would continue to do other composing
room work, will be without work while the pasteup is
done by Guild employees. Furthermore, the Employ-
er is obligated by its contracts with both labor
organizations to effect reductions in the work force
only by attrition, and so would have to add the new
employees without terminating anyone presently
employed. The Employer, therefore, contends that
an assignment of the disputed work to the Guild
would place the Employer under an intolerable
economic burden. Under these circumstances, we
find that these factors favor an award to the printers
represented by the Typographers.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that the Guy Gannett Publishing Company
employees who are represented by the Typographers
See Local 32. The Newspaper GuddAFL CIO-CLC (Boston Newspaper
Division, The Hearst Corporation), 209 ?NLRB No 44, issued this day
262 DECISIONS OF NATIONAL
are entitled to perform the work in dispute . We reach
this conclusion upon the Employer 's assignment of
the disputed work to these employees ; the fact that
the assignment is consistent with the current collec-
tive-bargaining agreement between the Employer
and the Typographers , and comports with area
practice ; the fact that the employees represented by
the Typographers possess the requisite skills to
perform the work ; and the fact that such assignment
will result in greater efficiency , economy, and
continuity of operations . Accordingly, we shall
determine the dispute before us by awarding the
disputed work at the Employer 's publishing plant in
Portland , Maine, to the Employer 's employees
represented by Typographers, but not to that Union
or its members.
LABOR RELATIONS BOARD
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 Guy Gannett Publishing Company
of Portland , Maine , who are represented by Portland
Typographical Union , No. 66 a/w International
Typographical Union, AFL-CIO , are entitled to
perform all pasteup work at the Employer 's Portland,
Maine, publishing plant upon conversion from the
hot-metal production method to the cold-type
process.
r