New Orleans Typographical Union No. 17 v. NLRB

• Decision Date: 22 November 1966
• Docket Number: 21113.,No. 22881,22881
• Citation: 368 F.2d 755
• Parties: NEW ORLEANS TYPOGRAPHICAL UNION NO. 17, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. E. P. RIVAS, INC., Appellant, v. NEW ORLEANS TYPOGRAPHICAL UNION NO. 17, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

368 F.2d 755 (1966)

NEW ORLEANS TYPOGRAPHICAL UNION NO. 17, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

E. P. RIVAS, INC., Appellant, v. NEW ORLEANS TYPOGRAPHICAL UNION NO. 17, Appellee.

Nos. 22881, 21113.

United States Court of Appeals Fifth Circuit.

November 22, 1966.

COPYRIGHT MATERIAL OMITTED

Richard C. Keenan and Kullman & Lang, New Orleans, La., for E. P. Rivas, Inc.

Thomas J. Meunier, New Orleans, La., George Kaufmann, Washington, D. C., Dodd, Hirsch, Barker & Meunier, New Orleans, La., for New Orleans Typographical Union No. 17.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Solomon I. Hirsh, Atty., N. L. R. B., Washington, D. C., for N. L. R. B.

Before THORNBERRY and COLEMAN, Circuit Judges, and YOUNG, District Judge.

COLEMAN, Circuit Judge.

In these cases we are confronted with diametrically conflicting orders of a District Court and of the National Labor Relations Board arising out of a work assignment dispute between an employer on the one hand and two competing labor unions on the other. Except for parallel procedural events in Court and in Board, the controlling facts are substantially the same. This Court consolidated these cases on February 21, 1966 and they were argued together on October 24, 1966. They are factually and legally so completely overlapping and interlaced that they may best be decided in a consolidated opinion.

Number 22,881, New Orleans Typographical Union No. 17 v. National Labor Relations Board, was argued first. In this case, Local 17 of the named Union, hereinafter referred to as ITU, petitions for a review of an NLRB order. ITU was ordered to cease and desist from further violations of § 8(b) (4) (D) of the Labor Management Act by striking to protest an assignment of work by Rivas to Local 53, Amalgamated Lithographers Association (ALA).¹ The Board cross petitions for enforcement of its order.

Number 21,113, E. P. Rivas, Inc. v. New Orleans Typographical Union No. 17, argued second, is an appeal from the order of the District Court enforcing an arbiter's award of the same work to ITU.

In short, the Board orders that the work be assigned to ALA; the Court orders that it be assigned to ITU. For the reasons hereinafter appearing, we enforce the order of the Board and vacate and remand the order of the District Court.

I BACKGROUND FACTS

At the expense of extending what would even otherwise have to be a lengthy opinion, a complete description of the status of the parties and the nature of the owner's printing operation is essential. Printing in 1963 was not the elemental process known to the days of Ben Franklin. Moreover, the employer does both letter press and offset printing, at different locations. Three unions represent employees at one location while a fourth represents all employees at the other. Of course, only two unions, one at each plant, are involved in the present controversy.

Rivas, the employer, operates two commercial printing plants in New Orleans, one on Bienville Street and one on Chartres, both in the French Quarter, 18 or 20 blocks apart.

The pressroom in the Bienville Street plant employs the letter press method of printing by which raised metal type locked in a frame, is put on the letter press, inked, and then pressed against paper to produce printed materials.

Printing at the Chartres Street plant is done by the offset method. Cameraready copy is photographed by a cameraman. The image on the resultant negative is burned onto a sensitized plate, called an offset plate, by an arc lamp. The unique feature of the offset plate is that only those portions of its surface burned with an image will hold ink; portions of the plate not burned with an image will repel ink. After ink is applied to the plate, the plate is pressed against a rubber blanket which receives the plate's ink image. The rubber blanket is in turn pressed against paper producing the final printed product.

Prior to April 1963, the date this controversy began, all "raw" copy from a customer was sent to the composing room at the Bienville Street plant, regardless of whether the material was ultimately to be printed by letter press at the Bienville Street plant or by offset at the Chartres Street plant. The raw copy would be "marked-up" by noting on the copy instructions as to type and size of type, and then would be given to a linotype machine operator who would set the type in molten metal. Lettering of headline size would be cast on a similar "hot metal" machine called a Ludlow. After type was cast it would be put, by line, into a frame called a "chase." If the copy was to be printed by letter press, the "chase" could be sent directly into the pressroom where it would be locked into a letter press and run off. If the copy was to be printed by the offset method, the "chase" would be put on a proof press and a "reproduction proof" would be run off. The "reproduction proof" would then be sent to the Chartres Street plant.

At the Bienville Street plant the employees in the composing room are represented by the ITU, the pressroom employees are represented by the Pressmen's Union, and the bookbindery employees are represented by the Bookbinders Union. All employees at the Chartres Street plant are represented by the ALA.

In a representative period prior to the installation of the photographic typesetter at the Chartres Street plant, almost all of the typesetting done by ITU members in the Bienville Street plant composing room was produced for use in letter press printing in that plant. Only 7.66 percent of work done by ITU members was "reproduction proof" work destined for offset printing at the Chartres Street plant. After the installation of a photographic typesetter at the Chartres Street plant in April, 1963, the Bienville Street plant composing room still devoted nearly 4 percent of its work to the preparation of reproduction proofs.

Both before and after the installation of the photographic typesetter at the Chartres Street plant, more than half of the offset work has been produced from copy that did not originate from the Bienville Street plant composing room. A customer would frequently bring in a form that he wanted reproduced; the cameraman at the Chartres Street plant would simply photograph the form and use the resultant negative to make an offset plate. Similarly, a customer would often reorder copies of a form that the employer originally printed. In that case, the employer would merely take a copy of the original printing from his files, and have it photographed for the production of an offset plate. Occasionally, a file copy to be reproduced would need a minor correction, such as a change in an address on the letterhead. The new line would be set by the hot metal machine in the Bienville Street plant composing room and a reproduction proof of the line would be run. The new line would then be sent to the Chartres Street plant where it would be pasted over the old line by one of the lithographers. The corrected copy would then be photographed and an offset plate made. Prior to the introduction of the photographic typesetter at the Chartres Street plant, the remainder of the offset work was produced from reproduction proofs set and run off in the Bienville Street plant composing room. Illustrations, display line, etc., that needed to be added to the text appearing on a reproduction proof would be pasted onto the proofs by lithographers at the Chartres Street plant after the reproduction proofs were delivered to that plant.

II THE ORIGINS OF THE LITIGATION

This brings us to the events which engendered this litigation.

In April, 1963, Rivas installed in the Chartres Street plant an ATF Photographic Tpyesetter, which we shall hereafter simply call the Typesetter, to be used solely to produce copy for the offset presses. The Typesetter not only has a keyboard unit but it also has a photographic unit. The keyboard is virtually the same as a standard typewriter keyboard. It is operated by normal "touch" typing. An operator on a standard linotype keyboard uses a particular 4-finger method of manipulating the keyboard rather than "touch" typing. When copy is typed on the Typesetter it produces coded tape. Simultaneonsly, the unit automatically types a regular typewritten page from which the typist may spot typing errors. If errors are present in any line, the line may be retyped. The unit "justifies" lines of type as they arise typed.

The tape is then taken from the keyboard unit and fed into the photographic unit where each character is photographed and transferred onto a sensitized paper contained in a canister on top of the photographic unit. Style and size of type are controlled by the insertion of an appropriate type disc in the front of the unit. The photographic unit also has a keyboard which is used for the limited purpose of making one-word corrections and justifying any lines improperly justified on the keyboard unit. After the characters are transferred onto the sensitized paper, the paper is taken from the canister and put into a small developing machine, which produces a printed page similar to a reproduction proof.

One person performs all three of the operations described above: typing on the keyboard unit, feeding the tape into the photographic unit, and putting the sensitized paper into the developer. If illustrations, display lines, borders, etc., need to be added to the proof, the proof is taken to a layout table where a paste-up man rules in the appropriate lines and pastes illustrations onto the proof with a special wax. The pasted-up proof is then photographed for the production of an offset plate.

While the Typesetter was being installed in the Chartres Street plant during the last week of April, 1963, Rivas hired two girls, both typists, to begin operational training. On April 26, the Employer and the ALA drew up a supplement to their existing contract specifying the wage rates and job specification for a Typesetter...