Penello v. Baltimore Litho. & Photoengravers Union

• Decision Date: 09 August 1965
• Docket Number: Civ. No. 16570.
• Citation: 244 F. Supp. 279
• Parties: John A. PENELLO, Regional Director of the Fifth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BALTIMORE LITHOGRAPHERS AND PHOTOENGRAVERS UNION, LOCAL 2-P, LITHOGRAPHERS AND PHOTOENGRAVERS INTERNATIONAL UNION, AFL-CIO and Lithographers and Photoengravers International Union, AFL-CIO, Respondents.
• Court: U.S. District Court — District of Maryland

244 F. Supp. 279

John A. PENELLO, Regional Director of the Fifth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BALTIMORE LITHOGRAPHERS AND PHOTOENGRAVERS UNION, LOCAL 2-P, LITHOGRAPHERS AND PHOTOENGRAVERS INTERNATIONAL UNION, AFL-CIO and Lithographers and Photoengravers International Union, AFL-CIO, Respondents.

Civ. No. 16570.

United States District Court D. Maryland.

August 9, 1965.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Julius G. Serot, Asst. Gen. Counsel, NLRB, Washington, D. C., David C. Sachs, Regional Atty., and Walter H. Maloney, Jr., Atty., NLRB, Baltimore, Md., for petitioner.

Samuel Kimmel, Towson, Md., for the Local.

Samuel Edes, Chicago, Ill., for the International.

James P. Garland, Baltimore, Md., for the charging party.

THOMSEN, Chief Judge.

In this proceeding under section 10(l) of the National Labor Relations Act, as amended¹ (the Act), a Regional Director of the National Labor Relations Board (the Board) seeks a temporary injunction against respondents (the Baltimore Local and the International), pending the final disposition by the Board of a charge filed by Alco-Gravure Division of Publication Corporation (Alco), alleging that respondents have engaged in and are engaging in unfair labor practices within the meaning of section 8(b) (4) (i) and (ii) (B) of the Act.

That subsection, as amended in 1959, provides in pertinent part:

"It shall be an unfair labor practice for a labor organization or its agents * * *

"(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is —

"* * * * * *

"(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of Section 9 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;

"* * * * * *"

The petition filed herein is based on petitioner's conclusion that there is reasonable cause to believe that respondents have engaged in the unfair labor practice charged and that a complaint of the Board based on that charge should issue. The injunctive relief prayed is interlocutory to the final determination of the charge pending before the Board. The Court must decide from the evidence taken at the hearing in this court proceeding whether petitioner had reasonable cause to believe that there had been such a violation and whether the injunctive relief requested is just and proper.² The principal question is whether section 8(b) (4) (i) and (ii) (B) should be construed to apply to the factual situation presented by this case.

Findings of Fact

There is little if any dispute about the basic facts, none about the jurisdictional facts set out in note³ below.

Alco is engaged at Glen Burnie, Maryland, and elsewhere in producing rotogravure printed material. It has two plants at Glen Burnie, a processing plant and a printing plant, in which it produces inter alia Sunday supplements, both monotone and four-color, for the Baltimore Sun, the Washington Star and the Philadelphia Bulletin, and catalogs for companies such as Sears Roebuck. Only the color work is involved in this case.

Respondent International was formed in 1964 as a result of the merger of the lithographers' and photoengravers' unions. Respondent Baltimore Local is the local which has jurisdiction over Glen Burnie. The branches of work done by its members include photography, retouching-layout, etching, re-etching, staging, printing and laydown, grinding and plating, and finishing.

Printing Developments Incorporated (PDI) is engaged in the business of developing and selling new products and procedures to the printing industry. It has plants in New York, Chicago and other cities.

The New York and Chicago Locals of the International have agreements with PDI which are approved by the International. The Baltimore Local and some other locals of the International, including the New York Local, have contracts with Alco.

Until recent years the procedure usually followed in gravure printing (following the receipt of a kodachrome transparency or other copy from the customer) involved: (1) the production by a photographic process of four negatives, one for red, one for yellow, one for blue and one for black; (2) the production therefrom of four positives, and the checking of the positives for color balance; (3) the production from the positives of a roto film or etching film, used for etching on copper; (4) the production of copper cylinders; and (5) the printing of the proofs and final product.

In the 1950's PDI developed a process for producing electronically scanned negatives suitable for use in preparing color plates for gravure printing, offset printing and letter-press printing. From 1963 until early in 1965 Alco sent 90-95% of its kodachromes to PDI for the preparation of scanned negatives, from which the employees of Alco produced the positives and carried out the subsequent steps outlined above. In emergency situations, or where there was an unusual press of work, Alco would send kodachromes to "supply houses", which would produce both negatives and positives by traditional methods, returning them to Alco for the subsequent steps.

Some time before December, 1964, PDI developed a procedure for producing electronically scanned positives. It is the only company which produces and sells such positives to the trade. The only other machines capable of producing such electronically scanned positives are owned and used by individual printers. In December, 1964, Alco considered the possibility of having some electronically scanned positives produced by PDI. Tests were made and it was found that they could be produced at approximately the same cost as that incurred by Alco when it produced its own positives from electronically scanned negatives, and more cheaply than the cost to Alco of having the work done by independent supply houses using traditional methods.

The proposed use of scanned positives caused concern to Ochs, the President of the Baltimore Local; he promptly contacted officials of the International and the New York Local, stating that in his opinion the obtaining by Alco of such electronically scanned positives amounted to subcontracting work regularly done by members of the Baltimore Local and violated the collective bargaining agreement between Alco and the Baltimore Local.⁴ At that time some of the officers of the International apparently felt that since PDI employed union men to do the work and had collective bargaining agreements with locals of the International, it would not be proper for the Baltimore Local to refuse to allow Alco to use PDI scanned positives. After being informed of the view of these International officers, Ochs discussed the matter with Alco's plant manager and wrote him on December 17, 1964, that while the union did not wish to put roadblocks in the path of progress, there was a possible threat to employment or job security of members of the Local. The letter continued: "I have spent quite a bit of time in exploring the possibilities of this (in our opinion) change of practice on acceptance of the positive materials and feel that, in view of your statements, no one should be hurt by their use at this time. While we do not accept the use of the positive separations from the PDI scanner, we reserve the right to raise the question again whenever it would be evident that their use constitutes a serious threat to the employment or job security of our members."

Consequently, in January, 1965, Alco began to use the PDI scanned positives for commercial production. Although scanned positives can only be used for certain types of work, e. g., "one shot" pages, during the period from January 1 to May 30, 1965, more than 35% of the positives used by Alco were produced by the PDI scanner. Since Alco's business increased substantially during that period, there were no lay-offs, but few if any additional men were hired.

On February 19 Ochs again wrote the International about the effect which the use of scanned positives was having and would have upon employment and job security. He reiterated his position that the use of scanned positives represented a change of practice and amounted to subcontracting the Local's regular work. There had been some misunderstanding among the International officers with respect to International's position on the matter, and on March 5 International Vice-president Hall tried to clear up these misunderstandings. He told Ochs that the Chicago and Detroit Locals had advised rotogravure employers in their cities that scanned positives would only be accepted as copy for the camera and not for direct use. Hall "advised" Ochs to take the same position in Baltimore and assured him that the International would support this position. However, Ochs learned from Alco's plant manager that the New York Local was permitting the Alco plant at Hoboken, N. J., to accept the PDI positives. Ochs wrote Hall on March 14 discussing the problems facing the Baltimore Local, and said: "Inasmuch as you mention...