St. Paul Printing Pressmen, Etc., Union No. 29

National Labor Relations Board - Board Decisions

Aug 5, 1964

148 N.L.R.B. 214 (N.L.R.B. 1964)

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After a careful analysis of the record evidence and upon a full consideration of
the Board 's decisions deemed pertinent herein , I am of the opinion that Resort's
operations are closely integrated with those of the raceway and that jurisdiction
should not be asserted in this proceeding.
Thus, in this connection , like Pinkerton , Resort's employees perform their serv-
ices solely at the racetrack and at locations and work stations physically interspersed
throughout the grandstand area of the track , and to a lesser extent , in other areas
of the raceway as well . Moreover, Resort's operations are devoted entirely to the
service of food and beverages to customers and racetrack personnel . The services
Resort provides , while not absolutely essential to the functioning of the racetrack,
are an integral attribute of a facility such as a racetrack devoted , in the final analy-
sis, to the entertainment and diversion of its patrons, and are, accordingly , a feature
expected and demanded by the track 's patrons . Accordingly , I am convinced that
Raceway is dependent upon the restaurant and concession facilities of Resort not
only for revenue but to fulfill the demands of its patrons and track personnel, and
that, as a consequence , there exists an extensive interrelationship between the opera-
tions of Resort and those of Raceway.
A further factor pointing to Resort's close identification with Raceway and the
racing industry generally is the degree of regulation , as found above, exercised by
Raceway and the Harness Racing Commission over aspects of the employment rela-
tionship relating to Resort's hire and retention of personnel, a factor differentiating
Resort from the typical restaurateur which is subject only to the usual licensing
ordinances and health and safety regulations extant in the restaurant industry
generally.
Accordingly, on the basis of the foregoing considerations I conclude that Resort
is an enterprise closely identified with the racing industry , and its operations are in-
extricably associated with those of the raceway . In view thereof , it is apparent that
any disruption of Resort 's operations arising out of a labor dispute, either primary
or secondary , involving Resort's employees would have a foreseeable , likely, and
immediate adverse impact upon the operations of the raceway . As the Board
found in the Kelley case, the State of New York has a strong interest in insuring
uninterrupted operations at racetracks . Thus, here , as in Kelley, it would be reason-
able to anticipate that in view of the vital interest the authorities of the State of
New York would act with dispatch to resolve any labor dispute involving Resort's
employees arising at the racetrack.
Moreover, in light of the recognized interest of the State of New York in the un-
interrupted operations of the raceway , and in recognition also of the potential com-
plexities and complications that under the doctrine of Federal preemption fore-
seeably could result from the enmeshing of the legal processes of State and Federal
authorities , if, contrary to my decision here, the Board would assert jurisdiction
over Resort while declining it over Raceway, sound administration of labor rela-
tions policy would seem to be best served by leaving to the State of New York,
authority to act in any labor dispute arising at the raceway involving Resort's
employees.
In view of this consideration , and in light of the expressed policy of the Board
that the effect of labor disputes involving operations in the racing industry is-not
likely to have sufficient impact on interstate commerce to warrant the exercise of
its jurisdiction , I shall recommend that the complaint herein be dismissed.
RECOMMENDED ORDER
Upon the foregoing findings and upon the entire record of the case, I recommend
that the complaint herein be dismissed.
St. Paul Printing Pressmen and Assistants ' Union, No. 29 and
Webb Publishing Company. Case No. 18-CD-33. August 5,
1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, following a charge filed April 21, 1964, by Webb
148 NLRB No. 19.
ST. PAUL PRINTING PRESSMEN, ETC., UNION NO. 29 215
Publishing Company, designated herein as the Employer, alleging that
St. Paul Printing Pressmen and Assistants' Union, No. 29, designated
herein as IPP, had violated Section 8 (b) (4) (D) of the Act. A duly
scheduled hearing was held before Hearing Officer David R. Hols on
May 14 and 15, 1964. All parties appearing were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
adduce evidence bearing on the issues. The rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed. The
IPP has filed a brief which has been duly considered by the Board.
Upon the entire record in the case, the Board 1 makes the following
findings :
1. THE BUSINESS OF THE EMPLOYER
Webb Publishing Company is a printing and publishing concern
producing telephone books, magazines, and other printed material at
its plant located in St. Paul, Minnesota. During the 12-month period
immediately preceding the filing of the charges herein the Employer
made sales of goods outside the State of Minnesota in excess of
$500,000 and its gross sales amounted to more than $5 million. The
parties stipulated, and we find, that the Employer is engaged in com-
merce'within the meaning of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The IPP and the St. Paul Typographical Union No. 30, designated
herein as ITU, are labor organizations within the meaning of the
Act.
III. THE DISPUTE
A. The work at issue
About 50 percent of the Employer's present production involves
printing by the offset method. The preparation of offset plates often
involves the use of a reproduction proof. A reproduction proof is a
high-quality proof that is taken from a page of type on a hand-
operated proof press to be photographed, the photograph to be used for
the manufacture of an offset plate. The only work in dispute is that
involved in making, or pulling, reproduction proofs by the proof
press method.
B. Evidence of conduct violative of Section 8(b) (4) (D)
For approximately the past 35 years the Employer has been making
reproduction proofs by the proof press method . Until about 2 years
' Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three-member panel [ Members Leedom , Fanning,
and Brown].
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ago, however, this work was a minor aspect of the Employer's opera-
tion. The pulling of such proofs was performed almost entirely by
members of the IPP. In January 1964, the Employer received a
demand from the ITU that it be assigned the work of pulling repro-
duction proofs. In April 1964, the Employer wrote both the ITU
and the IPP stating that it intended to take the work of pulling
reproduction proofs from employees represented by the IPP and re-
assign it to members of the ITU.
On April 10, 1964, the IPP wrote the Employer stating that if the
work were reassigned to members of the ITU, the IPP would be com-
pelled to strike and picket the plant. On April 29,1964, the Employer
reassigned the work to members of the ITU. Although there has been
no picketing by the IPP as yet, IPP's threat to strike and picket has
not been withdrawn. As a result, on April 20, 1964, the Employer
filed charges alleging that the IPP violated Section 8 (b) (4) (D) of
the Act.
C. Contentions of the parties
The ITU claims the work on the ground that. its contract with the
Employer awards to the ITU jurisdiction over "proof press operators"
and "employees engaged in proofing." The ITU also claims that, as
a matter of industry practice, printing concerns in the Twin Cities
area have the work of pulling reproduction proofs performed by
members of the ITU. -
The IPP, on the other hand, also relies upon its contract which
awards to that Union jurisdiction over the operation of "all letter
presses and presses of a specialty nature" as well as "all proofing."
In addition, the IPP relies upon the fact that its members have per-
formed practically all the disputed work for approximately the last
35 years, and upon a claim that the pulling of reproduction proofs
requires special skills which are associated with pressmen rather than
typographers. Although the Employer reassigned the work to the
ITU, it takes the position that it has no preference as to which em-
ployees perform the work, its only concern being that the same em-
ployee who operates the reproduction proof press should be able to
make "overlays" and "underlays," and perform other makeready
work associated with the pulling of reproduction proofs.
D. Applicability of the Statute
Section 10(k) of the Act empowers the Board to determine the
dispute out of which a Section 8(b) (4) (D) charge has arisen. How-
ever, before the Board proceeds with a determination of dispute, it
must be satisfied that there is reasonable cause to believe that Sec-
tion 8(b) (4) (D) has been violated.
ST. PAUL PRINTING PRESSMEN, ETC., UNION NO. 29 217
As set forth above, Respondent concedes that it threatened to strike
and picket the Employer in the event the Employer assigned the work
of pulling reproduction proofs by the proof press method to members
of the ITU. The Employer subsequently assigned said work to mem-
bers of the ITU, and Respondent, while not yet causing a work stop-
page or picketing the Employer's plant, has not withdrawn its threat
to do so. Accordingly, we find, on the entire record, that there is
reasonable cause to believe that a violation of Section 8(b) (4) (D)
has occurred and that the dispute is properly before the Board for
determination pursuant to Section 10(k) of the Act.
E. Merits of the dispute
As we stated in the J. A. Jones case,2 we will, pursuant to the Su-
preme Court's decision in CBS,' determine in each case presented for
resolution under Section 10(k) of the Act, the appropriate assign-
ment of disputed work only after taking into account and balancing
all relevant factors. The following factors are asserted in support of
the claims of the parties herein :
1. Certification; contract; and Employer's assignment
Neither the IPP nor the ITU has been certified by the Board with
respect to any employees involved in the instant proceeding. Al-
though both labor organizations have contracts with the Employer,
the contracts are of little practical importance since, as noted above,
both contracts contain general provisions which might be construed
as assigning the work of pulling proofs to the particular contracting
union, but neither agreement specifically covers pulling reproduction
proofs. At the hearing the Employer did not assert the supremacy
of one contract over the other, and, as indicated, its position in this
proceeding is that it has no preference as to which employees per-
form the work.
2. Work skills
The record shows that special skills are required to perform the
work in question. Since a reproduction proof must be of exception-
ally good quality, on occasion it is necessary to sand down type that
is too high, or build up type that is too low, to make adjustments in
the packing of the press, and to perform other work necessary to
assure a perfect or nearly perfect proof. While the record shows that
there is at least one employee represented by the ITU capable of per-
2International Association of Machinists, Lodge No. 143 (J. A. Jones Construction
Company), 135 NLRB 1402.
8 N.L.R.B. v. Radio & Televiswn Broadcast Engineers Union, Local 1212, et al . (Colum-
bia Broadcasting System), 364 U.S. 573.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forming such work, the ITU does not dispute that the making of
overlays, underlays, and other makeready work are the normal func-
tion of pressmen, i.e., members of the IPP. While it appears that
the use of certain new materials has reduced the incidence when such
adjustments are required, it is undisputed that such adjustments have
not been eliminated.
The record also shows that an occasion may arise when it is neces-
sary to unlock the chase and replace material which is incorrect or
defective. Such work is concededly within the exclusive jurisdiction
of the ITU. But such occasions are rare since the page of type and
all other material used for reproduction proofs is carefully checked
from galley proofs prior to being locked in the chase for use in the
making of a reproduction proof. The making of overlays, underlays,
and other makeready work, however, is a more frequent problem, and
one which the Employer has indicated is his primary concern.
3. Employer; industry; and area practice
As noted above, the work of pulling reproduction proofs had been
the work of IPP members for about 35 years preceding April 29,
1964, when the Employer reassigned the work to ITU members. Dur-
ing that 35-year period, ITU members performed less than 10 percent
of this work.
Although the record shows that other employers in the area utilize
ITU members for pulling reproduction proofs, it appears that these
employers unlike the Employer herein operate what is known as
"trade shops"; that is, shops that produce reproduction proofs for
use by other printing establishments, but do not perform any produc-
tion printing themselves and, therefore, do not employ pressmen. Al-
though there are area shops that do employ pressmen and neverthe-
less utilize the services of ITU members to pull reproduction proofs,
the evidence is insufficient to establish that such utilization represents
a definite area practice. Thus, while the record is clear that the Em-
ployer's traditional practice has been to use the services of IPP mem-
bers for pulling reproduction proofs, we cannot find that there is an
area practice which runs counter to the historical practice of the
Employer herein.
4. Efficiency and economy of operation
The Employer stated at, the hearing that in its opinion the efficiency
of the operation will be, the same regardless of who performs the
work. It appears, however, that since April 29, 1964, when the dis-
puted work was assigned to the ITU, and as a result of this dispute,
the Employer has utilized the "Bright-type" rather than the proof
INTERSTATE SMELTING AND REFINING CO. 219
press method for obtaining reproduction proofs. The record indi-
cates that this method, which enjoyed more extensive use in the past,
is less efficient and more expensive than the proof press method.
F. Conclusions as to the merits of the dispute
On the basis of the whole record, and on appraisal of the relevant
considerations, including the fact that the disputed work has been
performed by members of the IPP for the past 35 years without ob-
jection by the ITU 4 and the fact that the skills most significant in
connection with the pulling of reproduction proofs are, as the ITU
does not dispute, commonly associated with pressmen rather than
typographers, we shall determine the existing jurisdictional dispute
by deciding that the pressmen rather than the typographers are en-
titled to the work of pulling reproduction proofs by the proof press
method. The evidence on the record that some employers in the area
utilize the services of typographers to perform this work does not, in
our view, overcome the factors set forth above militating in favor of
assigning the disputed work to the pressmen. We shall, therefore,
assign the disputed work to the pressmen. Our present determina-
tion is limited to the particular controversy which gave rise to this
proceeding. In making this determination, we are assigning the dis-
puted work to pressmen employees represented by the IPP, but not
to IPP or its members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing and the entire record in this case,
the Board makes the following Determination of Dispute pursuant to
Section 10(k) of the Act :
Pressmen currently represented by the St. Paul Printing Pressmen
and Assistants ' Union, No. 29, are entitled to perform the work of
pulling reproduction proofs by the proof press method for the Webb
Publishing Company.
* We find it difficult to accept the ITU's contention that its long period of acquiescence
in this practice is attributable to the fact that it was unaware that IPP members were
performing the work.
Interstate Smelting and Refining Co . and International Molders
and Allied Workers Union , AFL-CIO. Case No. 13-CA-5803.
August 6, 196.E
DECISION AND ORDER
On April 13, 1964, Trial Examiner George L. Powell issued his De-
cision in the above -entitled proceeding , finding that the Respondent
148 NLRB No. 24.