Digital Presses and Their Inclusion in Lithography Units:
A Tale of Two Cases
Lindner & Marsack, S.C. is a management labor and employment law firm located in Milwaukee, Wisconsin. Jonathan Swain is President of the firm and represented Delzer Lithograph in their unit clarification case involving the NexPress. A special thanks to Nicole Sheldon, law student at Marquette University, for her assistance in the preparation of this article.
In an industry experiencing frequent technological advances, it comes as no surprise that two Unit Clarification Petitions (Petitions) have now come before the National Labor Relations Board (Board) to determine whether employees working on “state of the art” digital printing presses should be included in a bargaining unit that operates traditional, lithographic presses. These two cases concluded with opposing results, seemingly creating an uncertainty in how the Board will rule in future cases.
This article is intended to give employers guidance on how they can approach this issue. It will first discuss what unit clarification is, as well as highlight the standards the Board utilizes and the weight the Board has given to each factor. The two cases will also be discussed. Finally, an employer’s strategic options will be reviewed.
What is Unit Clarification?
Unit clarification is a means to obtaining an official determination of the correct bargaining unit. A petition for clarification of an existing bargaining unit may be filed by a labor organization or employer. Otherwise stated, it allows either an employer or the union to go to the Board to clarify whether a certain employee(s) should be included in a bargaining unit based upon the work performed. Unit clarification may result if new equipment purchased by an employer (such as a digital printer) and operated by an employee is arguably within the unit’s traditional work, like lithography.
The Board determines what factors support the employer’s or union’s position, and weighs those factors against each other. If the “weight” tips the scale in favor of including the employee in the bargaining unit, then the Petition will be granted and that employee will be included in the bargaining unit. If the scale tips in favor of not including the employee in the bargaining unit, the Petition will be denied and the employee will not be included in the unit.
What factors does the Board look at in a unit clarification analysis, and what weight are those factors given?
In the printing industry, the Board has set forth factors that it has deemed important in determining whether the community of interest of a unit for lithographic related work will be disturbed by the inclusion of employees who perform digital printing work. Those factors include the:
- Bargaining history of the parties and the language in the collective bargaining agreement (CBA);
- Employee interchange and contact;
- Centralization/similarity of daily supervision, management and administrative control;
- Degree of functional integration;
- Geographic proximity;
- Similarity of work/employment conditions;
- Similarity of employee skills, training, and functions; and
- Common control of labor relations.
The Board has considered other factors specific to digital printing:
- Whether digital printers are technologically similar to lithographic presses;
- Whether digital printers and lithographic presses compete for the same work and customers.
The factors – what are they and what weight does the Board give them?
A few of the factors will overlap or involve similar facts, and thus involve similar analyses. Some of the factors are discussed individually, as follows:
The bargaining history of the parties and the CBA language
The toughest factor for an employer to control at the time the unit clarification issue is raised is the contract language in the CBA, found in the “Jurisdiction” clause. This language is usually set at the time the dispute arises.
This is the threshold factor analyzed by the Board. If the parties had an opportunity in prior bargaining sessions to negotiate whether an operator of a new digital printer should be included in the bargaining unit, failure to bring the issue to the table could result in a denial of the Petition – before the Board analyzes any of the other factors. Plus, if the contract language specifically limits the Union’s jurisdiction, greater burden is placed on the union.
Thus, if the jurisdiction clause gives the union jurisdiction over “lithographic work,” then an employer can argue that a digital printer is not lithographic work, but is derived or developed from Xerography.
However, for instance, if the contract language is broader specifies the union has jurisdiction over “all printing and related technology,” then digital printer operators may be included in the bargaining unit.
Employee interchange and contact
The focus is on whether the employee(s) sought to be included have significant interchange or contact with the employees in the bargaining unit. Interchange is the concept of bargaining unit employees and non-bargaining unit employees substituting into or out of each other’s work designations as needed. Interchange is considered either permanent or temporary. The Board gives permanent interchange less “weight” than temporary interchange.
Employee interchange and contact also overlaps with the factors of geographic proximity and similar supervision. Unit and non-unit employees, who work in the same areas, or under the same supervision, will likely be in contact/interchange. There is also an overlap in the functional integration of work, as projects requiring work of both unit and non-unit employees may likely create employee contact.
Centralization/similarity of daily supervision, management and administrative control
This is a critical factor the Board analyzes. The Board views the centralization of daily supervision to be a strong indicator that the unit and non-unit employees share the same “community of interests.”
Degree of functional integration
If the new digital printer is not dependent upon or closely related to the work of the lithographic presses or the products and services the lithographic presses produce, then the degree of functional integration is small. If the digital printer(s) “effectively” replaces, produces or performs the same products and services the lithographic presses produce, however, then the degree of functional integration is high.
The Board considers the geographic proximity of both the unit and non-unit employees to each other, and the location in which the digital printer and lithographic presses are. This includes an analysis of what department employees and machines are part of, as well as where each is physically located on the employer’s premises.
Similarity of work/employment conditions
The Board focuses on the similarities/differences of each employee’s rate of pay, hours of work, benefits granted, job description, type of work performed, department the work is performed in, and whether unit and non-unit employees have a collective ‘community of interests’ in those working/employment conditions.
Similarity of employee skills, training, and functions
Whether employees operating lithographic presses and employees operating digital printers have equivalent levels of skills and training relevant to their work is important. If training specifically related to work is comparable, or at a comparable level, or if similar training is part of the requisite skills required to perform the functions for both presses and printers, then this will indicate a community of interest between unit and non-unit employees.
The decisions – why did the Board reach opposing outcomes?
Two cases have come before the Board presenting the question of whether an employee and the digital printer he/she operates should be included in a bargaining unit that primarily performs lithographic work.
Delzer Lithograph Company
Delzer Lithograph Company (Delzer) was decided in favor of the employer. In this case, the union failed to include the operator of a digital “NexPress” into the bargaining unit that performed traditional lithographic related work.
Delzer operates offset lithographic printing presses, provides prepress services in the operation of those presses, and also provides bindery services and a fulfillment division. The fulfillment division provides business services to customers, such as on-demand printing services, direct mail services, and the warehousing of printed and other promotional materials.
The union represented employees in the press and pre-press departments since the 1960s. The Unit Jurisdiction Clause in the CBA stated:
“All employees performing any of the following lithograph production work, shall without limit, be covered by the terms of this agreement: All work, processes, and operations directly related to lithograph or offset (including wet or dry) for the purposes of printing, or otherwise reproducing images of all kinds, including any technological or other change, or evolution from any work, process, operation now or hereinafter utilized in the methods described above.”
Delzer added a NexPress digital printer, placing it in the fulfillment department. The fulfillment department already had a Canon Image Runner digital printer, which was still utilized after the addition of the NexPress.
The Board’s decision
The Board denied the Union’s Petition, and did not include the NexPress operator in the press and pre-press bargaining unit; instead, the NexPress operator found to be part of the fulfillment department, which was not unionized.
The Board cited The Sun case, which stated:
We shall apply the following standard in unit clarification proceedings involving bargaining units defined by the work performed: If the new employees perform job functions similar to those performed by unit employees, as defined in the unit description, we will presume that the new employees should be added to the unit, unless the unit functions they perform are merely incidental to their primary work functions or are otherwise an insignificant part of their work. Once the above standard has been met, the party seeking to exclude the employees has the burden to show that the new group is sufficiently dissimilar from the unit employees so that the existing unit, including the new group, is no longer appropriate.
The focus of the Board’s analysis was on the CBA language, which specifically stated “lithography related work.” Because the language so specifically denoted lithography as opposed to any type of printing work, the employer successfully showed, via an expert, that digital printers are non-lithographic presses, nor are they substantially related to lithography work. The focus was on the meaning of “lithography.”
The Board also looked at other “community of interest” factors. The training and skill level of the NexPress operator fell “far short” of that of a pressmen. There was no evidence of interchange/contact of unit and non-unit employees, nor was there common supervision. The work performed by each department was not similar, and the conditions of employment and geographic proximity did not support a finding to the contrary. As a result, the employer was successful in getting the Petition denied.
Lawton Printing, Inc.
Lawton Printing, Inc. (Lawton) was not decided in favor of the employer. In this case, the union succeeded in accreting the operator of a digital printer Hewlett Packard Indigo 5000 (HP) and the work the HP performed into the bargaining unit that performed lithographic work.
Lawton is split into four divisions, and is involved in the production of printed materials, sales and customer service, publication, shipment/delivery and warehousing, similar to Delzer. The union represented the bindery employees, as well as the press operators who operated the employer’s lithographic presses. The jurisdiction clause of the CBA stated:
“The Bargaining unit includes all employees performing work described in the jurisdiction classifications – Single Color Operator (26” – 31”); Letterpress Operator; Camera Operator/Negative Assemblers/Desk Top Color Scanner Operator; Six Color Press Operator; Press Assistant; Four Color DI Press Operator; Four Color Press Operator Above 25”; Two Color Press Operator Above 25”; Platemaker; Press Operator 20” & Under; and General Worker.”
The company purchased the HP printer in 2006. The operator of a Four Color DI Press (DI Press) was “hired” to take over the printing operations of the HP printer. The operator had been a bargaining unit employee for four years, and had resigned from the unit to take the HP operator position. The DI Press work was basically transferred to the HP printer, and the DI Press ceased operations.
The HP printer was placed in a separate room, within a short distance from both unit and non-unit departments. The employer highlighted the technological differences between the HP Printer and the lithographic presses, as well as the discrepancy in skill/training needed to operate the HP printer, compared to a lithographic press (two weeks versus four years of training). The same manager supervised the unit and the non-unit employee in question. The wages, hours worked, scheduled times, and benefits granted were similar, but not identical. The HP operator worked 3.5 months before the Petition was filed. In that time, if he was absent from work, a non-bargaining unit employee would replace him on the HP printer.
The Board’s decision
The Board determined that the HP printer operator should be accreted into the bargaining unit. The Board first determined the parties had not prior negotiated the new classification, nor had they expressly included/excluded the operator from the bargaining unit – based upon the CBA language. The Board found, however, that there was an overwhelming community of interests between the bargaining unit and the HP operator. The Board rejected the analysis of technological differences, used in Delzer, as it was of little value since the CBA language did not specify unit jurisdiction to be limited to lithography related work.
The Board noted the presence of common supervision, and substantial interchange, given the HP operator was formerly part of the bargaining unit and was replaced by non-bargaining unit employees when absent. Training and skills were NOT similar, given the HP operator’s training to operate the DI press were directly applicable to his work on the HP printer because he was completing the same work he had before. The degree of functional integration was high because the HP printer effectively replaced the DI Press since the DI press was no longer in operation. (does this need to be re-written then?)
The control of labor relations was the same, and the working conditions were markedly identical, so as to not disrupt the unit’s community of interests upon accretion. The geographic proximity of the HP printer was not significant enough to negate accretion, even though it was located in a separate room. Finally, the Board analyzed the various departments within Lawton and determined the HP operator had more in common with unit employees than non-unit employees.
How can employers reach a Delzer, not a Lawton outcome?
An employer has the advantage of knowing the factors the Board looks at in deciding whether operators of digital printers should be included in a unit that performs lithographic work. This section will help employers plan ahead and better manage the factors before the Petition is filed.
It is important to keep the bargaining language as precise or specific to lithography related work as possible. The broader the language in the CBA, the better the Union’s case. Of course, employers cannot solely control this factor – or will never get the chance to do so before a Petition is filed. Should this occur, focus on contrasting the technology and job functions performed by the digital printer, as compared to the classifications listed under the applicable jurisdictional language.
An employer should always keep digital printer and press operators as separated as possible. It is tougher to argue that an employee who was formerly part of the bargaining unit is not tied to that bargaining unit. After all, at one point in time, this employee had an established community of interest with the bargaining unit. Consider hiring a new employee from outside of the company, or moving an existing employee who is not a member of the bargaining unit to the position of digital printer operator.
Avoid interchange of the digital printer operator with any bargaining unit employees. If possible, interchange the digital printer operator with non-unit employees (ideally, from the department you consider this employee to be part of), or do not interchange that employee with anyone.
For employee contact concerns, do not co-mingle assignments. The less work contact the employees have, the more likely it will reflect that there is no community of interest in getting work done. If different departments, areas, or groups have different supervisors, appoint a supervisor who oversees non- unit employees/departments to supervise the digital printer operator.
The type of work performed, and similarity of the job description may indicate functional integration. Ideally, the new digital printer will be performing different work than the bargaining unit, or will perform work that non-union employees also perform. If the digital printer performs the same work/services for the same customers as the lithographic presses, it makes it appear as if the two machines are performing the same work.
Geographic proximity is the most easily controlled factor. If properly controlled, this factor can be used to support a strong argument against employee contact, integration and supervision.
The similarity of work/employment conditions relates to the degree of functional integration because it involves the performance of the same/similar type of work or job description. Therefore, compensate the printer operator with different wages, benefits, hour requirements, vacation, etc. than unit employees, or at least do so in a way that is similar to non-unit employees’ employment conditions.
The issue of unit clarification in the printing industry is likely to become more prominent as printing technology continually advances. It is important to focus on the factors and standards set forth by the Board in Delzer and the Lawton cases. Remember this issue is unique because employers can apply relevant factors to their advantage well before a Petition is filed. By looking at the factors the Board focuses on and strategically planning well in advance of the filing of a Petition, an employer can be better prepared to have the right outcome.