New York Mailers' Union No. 6, ITU

NEW YORK MAILERS' UNION NO. 6, ITU 665 New York Mailers' Union No. 6, International Typographical Union, AFL-CIO and The New York Times Company Newspaper and Mail Deliverers' Union of New York and Vicinity, Ind. and The New York Times Company. Cases Nos. 1-CD- 221-1 and 2-CD-221-2. June 18, 1962 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act following a charge filed by The New York Times Company, herein called the Company, alleging that Newspaper and Mail Deliverers' Union of New York and Vicinity, Ind., herein called Deliverers, had threatened, coerced, and restrained the Company and induced and encouraged employees to engage in a refusal in the course of their employment to perform certain services with the object of forcing or requiring the Company to assign said work to members of the Deliverers rather than to members of the New York Mailers' Union No. 6, International Typographical Union, AFL-CIO, herein called Mailers. On October 20, 1961, a charge alleging similar 8 (b) (4) (D) violations was filed against the Mailers, except that the object of the alleged prohibited conduct therein was to force or require the Company to assign said work to members of the Mailers rather than to members of the Deliv- erers. A duly scheduled hearing was held before James J. Graham, hearing officer, on November 15, 22, and 30, 1961. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Thereafter, the Company and the Deliverers filed briefs which have been duly considered by the Board. Upon the entire record in the case, the Board makes the following findings : 1. The Company is the publisher of The New York Times and oper- ates two plants in New York City; its newspapers are sold both within and without the State of New York. The Company's gross revenues during the past year were in excess of $1,000,000. We find that the Company is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to exercise jurisdiction herein. 2. The Mailers and the Deliverers are labor organizations within the meaning of the Act. 3. The dispute : a. The work in dispute The disagreement between the two Respondent Unions which gave rise to this proceeding centered upon the tying into bundles of certain 137 NLRB No. 78. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advertising supplements printed by the Company. In addition to publishing newspapers under its own masthead, the Company pro- duces advertising materials in bulk for its advertising customers; these supplements are called "dodgers" and are delivered to the cus- tomer, who then distributes them to individual readers independently of the Company's circulation or distribution departments. Like the Company's regular newspapers, the dodgers come off the presses and are carried by conveyor to the mailroom, where members of both the Mailers and the Deliverers' Unions work. The mailers remove all printed material from the conveyors and place it on tables, and there is no issue over their right to do this work. After the news- papers, or dodgers, are tied into bundles-the pinpointed work motion constituting the focus of the dispute in this case-the deliverers remove them from the table, place them on skids (wooden platforms), and then move the skids by hydraulic lifts to trucks where they are loaded and transported by deliverers to the delivery destinations. Again, the deliverers' right to remove the bundles from the tables and handle them from that point on is not questioned. Most of the printed matter coming off the presses, of course, con- sists of the consecutive editions of The New York Times and there is no dispute as to which of the two groups of employees is entitled to tie the newspapers. There is a well-established division of the work of tying newspapers, determined by the point of destination of the bundle. Papers going into what on the record was called the suburban area, or outside the city limits, are normally tied by the mailers. Papers to be delivered within the city (and, by unexplained tradition, Hudson County in New Jersey) are tied by the deliverers. A ques- tion arose over the tying of the advertising dodgers, publications which the Company has occasion to print and to sell to its advertising customers only six or eight times each year, and it is only the question of which group of employees is entitled to tie these dodgers that must be decided here. b. Evidence of coercion and inducegment to cease work In October 1961, the Company received an order for 900,000 copies of a dodger from Damar Stores, Inc., to be delivered to the Blum Bindery in Irvington, New Jersey, a point outside the city area. As the dodgers started to come off the presses on October 16, the work of tying was assigned to the mailers, following the general practice applicable to newspapers. Alfred Mahoney, business agent of the Deliverers Union, then told the assistant to the manager of the mail and delivery department that the deliverers were entitled to the work and "we will continue to tie it." In a short time, Mahoney spoke on the telephone to John Murphy, assistant circulation manager, and the two attempted to settle the dispute. According to Murphy's testi- NEW YORK MAILERS' UNION NO. 6, ITU 667 mony, Mahoney insisted his men must do the work, and "he told me that he would have to tie the bundles even after the mailers had tied them in order for his men to deliver them." Consistent with the original assignment, Murphy then ordered the mailers to continue to tie the dodgers, with the further instruction that if trouble ensued, they were simply to place the dodgers on the skids untied. When the mailers again started to tie the bundles, the deliverers began to retie them once over again. A flareup resulted, two members of the Mailers' Union cut both ties on several bundles, and another of them pushed a button, stopped the presses, and halted the entire operation. When printing was resumed the dodgers were placed on the skids untied where they remained. The next morning Damar, the advertising customer, told the Com- pany it wanted the dodgers delivered to a bindery in New York City proper instead of to the original New Jersey destination. Whereupon, again in keeping with the general practice for tying newspapers, the Company assigned the disputed work to the deliverers, and the mailers were instructed to remove the loose dodgers from the skids to the tables so that the deliverers could tie them. The mailers refused to do as they were asked. Instead, they consulted Klein, their day chairman, and McDonald, the Mailers' business agent, both of whom supported their position. The mailers continued to refuse to place any dodgers on the tables, and the dodgers continued to accumulate on the skids. During the day officials of the Company conferred with agents of the Mailers Union, including McDonald. Repeatedly McDonald refused the company requests that McDonald permit his union members to move the dodgers to the tables for the deliverers to tie. It was not until a few days later, when the General Counsel obtained a temporary restraining order in the Federal district court, that the mailers started to comply with instructions and place the dodgers on the tables. The deliverers then tied them. c. Contentions of the parties Both Unions ask that the notice of hearing be quashed and the en- tire proceeding discontinued and they advance two distinct and sepa- rate grounds in support of their motions. Each of them contends that there is no evidence showing either coercion or restraint upon the Company, or inducement of employees to strike in order to force a change in work assignment, and that therefore no basis exists for finding reasonable cause to believe that Section 8(b) (4) (D) has been violated by either Respondent. Each of them also points to arbitra- tion clauses in their respective collective-bargaining agreements with the Company and argues that those contract provisions constitute agreed-upon methods for voluntary adjustment of the dispute as pro- vided for in Section 10(k) of the statute. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to what an appropriate assignment by this Board should be now in this proceeding, the Deliverers request that it be made in favor of its members. The Mailers Union expressed no position on this ques- tion at the hearing; it filed no brief thereafter. The Company insists that the mailers were entitled to tie the dodgers on October 16 when their destination was New Jersey, and that the deliverers were entitled to the work on the next day when the point of delivery had become New York City. The Company asks the Board to award the work consistent with its assignments in each situation. d. Applicability of the statute The Deliverers' members in the mailroom refused to handle the tied bundles of dodgers on October 16 without first retying them because the work had not been assigned to them, and when their business agent, Mahoney, learned of their action, he approved of it. Speaking to Murphy, of the Company, a little later, he said his men would do their regular work if they were permitted either to tie the bundles initially or to tie them a second time after the mailers did so. That the total import of his conversation with Murphy was that the deliverers would continue to refuse to work unless their claim to tying work were conceded is clear on the record as a whole. We are not persuaded by the Deliverers' argument that because its members were always will- ing to perform their regularly assigned delivery work provided they were also granted tying work, it cannot be said they struck or in any way refused to work. We can hardly regard an offer to terminate a, work stoppage already in process on condition that the initial strike demand be yielded as evidence that there was no refusal to work at all. As to the conduct of the Mailers Union the next day, its members flatly refused to move the dodgers on to the tying tables only because the tying work had been assigned to the deliverers . And again, their union officials ratified the work stoppage . Moreover, despite the Com- pany's continued efforts to dissuade the Mailers' business agent, Mc- Donald, from such a continued resolve, he persisted in the work claim and it took a court injunction order to get his members back on their regular jobs. We also find no merit in the Respondents' contention that the arbi- tration provisions of their respective contracts provide the parties with an agreed-upon method for voluntary adjustment of the dispute. The dispute is between the two unions . Arbitration under the Mail- ers' contract would bind it and the Company ; arbitration under the Deliverers' agreement would bind only that Union and the Company. NEW YORK MAILERS' UNION NO. 6, ITU 669 In neither instance would the second Union, party only to its own contract, be affected.' On the basis of the entire record we find 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 under Section 10 (k) of the Act a e. Merits of the dispute There is no claim by either union, nor does the record in any way indicate that any special skill is required to tie these dodgers into bundles, that either of the two competing groups of employees is more experienced in or capable of doing the disputed work than is the other, or that there can be any rational basis-in terms of the nature of the work-for awarding it to one or the other group. Basically, each union contends, with little fact to support the conflicting assertions, that the Company departed from past practice when, on October 16, it assigned the work to the mailers, and again the next day, when it reassigned it to the deliverers. We have examined the collective-bargaining agreements between the Company and the Unions and find them of no material assistance in reaching the affirmative determination which we are called upon to make. In pertinent part, the Mailers' contract reads : "... All ad- vertising or promotional matter having no relation to the paper it- self, or consisting of advertising not carried in regular editions, or not carrying the name of the paper involved, shall be tied and handled by separate crews who shall receive the compensation agreed upon for the class of work performed." The following counterpart language appears in the Deliverers' contract : "All advertising or promotional matter that does not advertise or promote the publisher's own publica- tion or which consists of advertising not carrying the regular editions, or which does not carry the name of the publisher's own publication, shall be tied, handled, and delivered by an extra crew." On their face these contract provisions reveal overlapping coverages for tying work on advertising material like the dodgers that were being handled in this work dispute. Clearly, therefore, neither of them can furnish a solid ground for awarding the work in every instance to one union group or the other. In the absence of factors directly related to the precise work dispute presented, related considerations of custom and practice among other 1 The Deliverers ' contract also provides for tripartite arbitration of jurisdictional dis- putes in the mail room. However, as the Mailers has refused to submit to such arbitra- tion, this clause cannot constitute a voluntary method for adjustment within the mean- ing of Section 10(k) of the Act. 2 In view of the above findings , we shall, and we hereby do, deny the Unions' motions to quash the notice of hearing. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employers in the area or in the industry usually furnish a partial basis of decision at least. Here, however, the parties declined to offer evi- dence respecting any practice apart from the operations of this Company. The only remaining pertinent consideration on this record-whether it be called a directly related factor or a sensible basis for award by analogy-is the rather well-established past practice in tying the Company's newspapers. Tying newspapers is the same work as tying the dodgers and the Company has divided that work between these same two groups of employees using the ultimate point of destination as guide. There is every indication that this solution has been a happy and workable one. As stated above, none of the parties seriously disputes the Com- pany's explanation that mailers tie newspapers going into suburban areas and deliverers tie them when destined for city delivery. The rule has not been inflexible but in general has been followed. Thus there is evidence that the mailers in fact have tied all newspapers, both daily and Sunday editions, going outside the city, and that the deliverers tie all of the 413,000 copies of the daily newspaper except about 9,000, and about 435,000 of the approximately 520,000 of the Sunday editions, all going to city locations. The Company's decision to have the mailers tie the dodgers on October 16, when they were destined for Irvington, New Jersey, was, therefore, as the Company contends, an extension of the accepted practice covering newspapers. Likewise, its assignment of the work to the deliverers the next day, after the Company had been advised by the customer to deliver the dodgers in the city itself, again followed the apparently equitable formula used generally. Dodgers are printed only infrequently, usually go to city locations, and have therefore in most instances been tied by the deliverers. In one instance, although they were sent to Mount Vernon, New York, in the suburban area, the deliverers tied them. There is persuasive indi- cation, however, that this was an inadvertent assignment. In any event, a single deviation from what has substantially been a firm basis of allocation cannot justify a continued departure from a clear practice. We have said in the Jones case that an affirmative award in these proceedings must be "an act of judgment based on commonsense." 3 Apparently the Company's solution of dividing this work between the two groups of employees on the basis of ultimate destination has been a practical one and has operated satisfactorily in the past and given relative stability to its operations. It followed the same sensible guide in making the assignments which gave rise to this dispute. No persuasive reason has been advanced why we should not ourselves ap- ply the same practical and logical test now. 3J. A. Jones Construction Company, 135 NLRB 1402. J. WEINGARTEN, INC. 671 Accordingly, upon the record as a whole, we shall determine the dispute by assigning the work of tying dodgers to the mailer group of employees in the mailroom represented by the Mailers, when the dodgers are to be delivered to suburban areas, and to the deliverer group of employees represented by the Deliverers' Union when they are to be delivered to city destinations. Our present determination is limited to the particular controversy which gave rise to these pro- ceedings. In making this determination, we are not assigning the disputed work to members of either the Mailers or the Deliverers or to those unions. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the Board makes the following Determination of Dispute pursuant to Section 10 (k) of the Act : 1. When special advertising supplements are scheduled for delivery to points within the city limits of New York or Hudson County, New Jersey, they shall be tied by the deliverers in the mailroom, a group represented by Newspaper and Mail Deliverers' Union of New York and Vicinity, Ind. When special advertising supplements are sched- uled for delivery to points outside the city limits of New York or Hudson County, New Jersey, they shall be tied by mailers in the mailroom, a group represented by New York Mailers' Union No. 6, International Typographical Union, AFL-CIO. 2. Neither New York Mailers' Union No. 6, International Typo- graphical Union, AFL-CIO, nor Newspaper and Mail Deliverers' Union of New York and Vicinity, Ind., is lawfully entitled to force or require The New York Times Company to assign the tying work in dispute in a manner inconsistent with the foregoing determination. 3. Within 10 days from the date of this Decision and Determination of Dispute, New York Mailers' Union No. 6, International Typo- graphical Union, AFL-CIO, and Newspaper and Mail Deliverers' Union of New York and Vicinity, Ind., shall notify the Regional Director for the Second Region, in writing, whether or not they will refrain from forcing or requiring The New York Times Company, by means proscribed by Section 8(b) (4) (D), to assign the work in dispute in a manner inconsistent with the provisions of (1) above. J. Weingarten, Inc. and Retail Clerks International Association, AFL-CIO. Case No. 23-CA-1360. June 18, 1962 DECISION AND ORDER On April 24, 1962, Trial Examiner Lloyd R. Fraker issued his Intermediate Report in the above-entitled proceeding, finding that 137 NLRB No. 81.