New York Mailers' Union No. 6, ITU, AFL-CIO

NEW YORK MAILERS' UNION NO. 6, ITU, AFL-CIO 573 when reached? However, that requirement, in Section 8(d) quoted below, is im- mediately followed by: "but such obligation does not compel either party to agree to a proposal or require the making of a concession." Since the law does not specifically prohibit an employer from refusing to make "concessions"-so long as he negotiates "in good faith" on mandatory issues-and does not specifically require each party in group negotiations to come to an identical agreement, recourse is necessary to the Board and court interpretations of that law. The Trial Examiner has considered fully the opposing arguments in the several briefs, and the many cases cited. None of the cited cases present facts identical with those established here, as viewed by the Trial Examiner. It appears that in most cases, wherein direct violation of the language of the law was not found, the Board's policy has been to weigh each case on its own merits, and to apply-in effect if not in specific terms-the test of "good faith bargaining." It is this test which the Trial Examiner applies in this case, as was done in N.L.R.B. v. Insurance Agents' International Union (Prudential Insurance Co.), 361 U.S. 477, where good-faith bargaining by a labor organization was the chief issue. From the beginning of negotiations in the fall of 1961 Kroger's representatives at the group bargaining maintained, and made known to the union representatives, that they would not yield to the demand the pension provisions be included in any contract they signed. They did not refuse to discuss or "negotiate" the issue, so far as the record reveals, and as previously noted General Counsel does not so contend. They did, however, decline to make any concession on the point of including the provision in a contract, a privilege which the Act accords to any party to negotiations. And, as found, Kroger representatives continued to meet with union officials, seeking solution to the problems, after other employers had yielded to the union demands. The Trial Examiner has normal respect for the "voice of dissent," whether uttered by an individual, an employer, or a union representative. And he believes the conduct of Kroger in this case to have been no more than an exercise of this privilege. No mendacity was exhibited by that Respondent's representatives, nothing in their state- inents to union officials could reasonably be interpreted as indicating that they would agree to be bound by what other employers agreed to on the pension issue. They recanted in no fashion from any agreement previously made by them either ex- pressly or by implication, during the 1961-62 negotiations. As to the Union's expressed contention, in which General Counsel apparently joins, to the effect that majority rule must prevail in such group bargaining, the Trial Examiner finds no specific support for it in Board decisions. In short, the Trial Examiner concludes and finds that the evidence in this record does not establish that in its 1961-62 negotiations with the Charging Unions the Respondent manifested bad faith, or that it refused to bargain in violation of Sec- tion 8 (a) (5) and (1) of the Act. It will therefore be recommended that the complaint be dismissed in its entirety. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law , the Trial Examiner recommends that the complaint in this case be dismissed in its entirety. Section 8 ( d) requires "the execution of a written contract incorporating any agree- ment reached if requested by either party." New York Mailers' Union No. 6, International Typographical Union, AFL-CIO and News Syndicate Co., Inc. Case No. 2-CD- 235. March 18, 1963 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act following a charge filed by News Syndicate Co., Inc., herein called the Company, alleging that New York Mailers' Union No. 6, International Typo- 141 NLRB No. 49. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD graphical Union, AFL-CIO, herein called Mailers, engaged in illegal conduct with respect to the Company's employees in order to force a change in work assignment as between members of the Mailers and members of Newspaper and Mail Deliverers' Union of New York and Vicinity, Independent, herein called Deliverers. A duly scheduled hearing was held before George F. Mclnerny, hearing officer, on March 27 and 29 and on April 17, 1962. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and adduce evidence bearing on the issues.' The rulings of the hearing officer made at the hearing are free from prejudical error and are hereby affirmed. Thereafter, the Company and the Deliverers filed briefs which have been duly considered by the Board. Pursuant to Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chair- man McCulloch and Members Rodgers and Fanning]. Upon the entire record in this case, the Board makes the following findings : 1. The Company is the publisher of the New York Daily News, with publishing operations in New York City; its newspapers are sold both within and without the State of New York. The Board's jurisdiction is not contested, and the Board has previously asserted jurisdiction over the Company in several cases, including Paperhandlers' & Straighteners' Union No. 1, International Printing Pressmen & As- sistants' Union, AFL-CIO (News Syndicate Co., Inc.), 124 NLRB 738. Accordingly, we find that the Company is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The Mailers and Deliverers are labor organizations within the meaning of the Act. 3. The dispute : A. The work in dispute The Company recently mechanized the mailroom operation of stack- ing, tying, and transporting newspapers as they came off the press. The operation begins with the stacker itself, which counts and stacks the bundles. The bundles move along a conveyor or Jampol belt to a "jogger" which straightens the bundles, and then to an in-line feeder which inserts the stacked bundles at specific intervals into the wire- tying machine. After being tied, the bundles move along conveyor belts #1 and #2 to the loading platform where trucks take them to delivery points. The disputed work is the operation of the control 'This case was consolidated for hearing by the Regional Director with Cases Noe. 2-CD-233-1 and 2-CD-233-2 (141 NLRB 578). However, for convenience of treatment, the cases are hereby severed for purposes of decision NEW YORK MAILERS' UNION NO. 6, ITU, AFL-CIO 575 buttons which activate and regulate the Jampol belt, "jogger," and in- line feeder during city runs? B. Evidence of illegal conduct On the evening of February 9, 1962, the Company attempted to utilize the stacker and allied equipment on a city run. The mailer who operated the wire-tying machine on the just concluded mail run was assigned by the Company to a position in the mailroom on the loading platform side of the wire-tyer and somewhat removed from the wire- tyer and the adjacent in-line feeder which houses the buttons which control the Jampol belt, "jogger," and in-line feeder. The Company assigned the mailer to this position from which he was to check and count the bundles as they left the wire-tying machine. The mailer, however, objected to this assignment, and Thomas M. Laura, president of the Mailers, came to the mailroom and expressed his conviction that the buttons controlling the Jampol belt were within the work jurisdiction of the Mailers, and therefore the proper positioning of the mailer was near the control buttons, for otherwise they would be operated by a deliverer, who was stationed at a point closer to the con- trol buttons. He indicated further that he would strike the operation if any deliverer attempted to operate the button controlling the Jampol belt. An injunction against the Mailers was issued by the U.S. District Court for the Southern District of New York on April 6, 1962. C. Contentions of the parties The Deliverers Union initially contended that it was entitled to perform the disputed work by virtue of its work jurisdiction as de- scribed in its contract with the Company. In addition, the Deliverers relied upon past practice in the mailroom whereby it claims a geo- graphical work jurisdiction over the operation of any equipment on the loading platform (south) side of a certain line of building pillars running east and west within the mailroom. Since the in-line feeder, which houses the buttons which operate the Jampol belt, are now located south of this imaginary line, the Deliverers contended that it had a traditional and historical jurisdiction over the operation of the Jampol belt, the "jogger," and in-line feeder as well. The Deliverers, however, have modified this position in their brief to the Board, and presently indicated a willingness to abide by the results of an arbitra- tion of the issue under the Deliverers contract in which Impartial Chairman Moskowitz decided as follows : Newspapers which are destined for delivery to retailers within New York City con- stitute what is known as a oily run, as opposed to newspapers destined for delivery out- side New York City to wholesalers, which are generally referred to as mail runs. Juris- diction over the operation of this equipment on mail runs is not in dispute. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The claim of the Union for jurisdiction of the operation of the Jampol belt, "jogger," and in-line feeder and control of the buttons activating said equipment on Press No. 1 on city runs at the New York plant of the Publisher is denied. 2. Since the Union has jurisdiction of the wire-tying machine on the No. 1 Press line on city runs, the Union is entitled to juris- diction over the pusher arm on city runs, and such jurisdiction is granted.' The Mailers takes the position that they are entitled to operate all the buttons which control any of the machines on the press or stacker side of the wire-tying machine including the Jampol belt, "jogger," and in-line feeder. The Company originally contended that deliverers were entitled to perform the disputed work, but the record, and the Company's brief show that it has altered this position and now agrees that the dis- puted work properly belongs to mailer employees under the Mailers contract with the Company. D. Applicability of the statute The charges which were duly investigated by the Regional Director alleged violation of Section 8 (b) (4) (D) of the Act, and the Regional Director was satisfied upon the basis of such investigation that there was reasonable cause to believe that a violation had been committed. On the basis of the entire record, we find that there was 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). E. Merits of th e dispute Prior to the introduction of the stacker and its allied equipment, the operation of stacking newspapers and pushing these newspapers along a table to the wire-tying machine, was performed by mailers on both mail and city runs. Despite the fact that on city runs a deliverer operated the wire-tying machine, deliverers did not perform any of the manual work of moving newspapers from the press to the wire- tying machine. Both the Mailers contract and the Deliverers contract provides, in substance, that when a mailroom operation within either of its jurisdictions becomes mechanized, that Union shall retain juris- diction of the operation so mechanized. In the instant case, the record establishes quite clearly that prior to the automated operation, the a The question of the pusher arm is not specifically litigated on the record , however, we note that Mr Moskowitz awarded the pusher arm control to the Deliverers on a basis of the manual past practice in the mailroom , and that the Company in its brief, accepts the Moskowitz determination. NEW YORK MAILERS' UNION NO. 6, ITU, AFL-CIO 577 movement of newspapers from the presses to the wire-tying machines was performed by mailers on city runs as well as mail runs. Clearly, both the Mailers and the Company interpreted the jurisdic- tional scope of their contracts in this manner, and the Deliverers have acquiesced in this interpretation for many years. The Company after an initial opposition, now concurs with the Mailers position and is willing to assign the automated job duties as they had been performed prior to the automation. Likewise, the Deliverers no longer contest the jurisdictional right of mailers to perform the disputed work since they are now willing to abide by the decision of Arbitrator Moskowitz which denied them jurisdiction of the disputed work. In summary, it appears that mailers had performed the operation when that operation had been performed manually. The Mailers contract in effect preserves the Mailers jurisdiction over the operation in the event that it became automated, and nothing in the Deliverers contract with the Company justifies an award of the disputed work to deliverer employees. In effect, both contracts provide that the traditional lines of jurisdiction should be the basis of work assignments whenever machinery replaces the manual operation. Actually, this incorporates into the contract the factor of traditional and historical jurisdiction. The Company is now willing to assign the disputed work to Mailers and the Deliverers apparently do not intend to protest the right of the mailers to perform the disputed work since their current position is that they will abide by the decision of arbitra- tor Moskowitz wherein he denied them the disputed work. In these circumstances, particularly where mailers had manually performed the now automated operation, we shall determine the dispute by assigning the disputed work of operating the control buttons for the Jampol belt, "jogger," and in-line feeder to mailers on city runs of the Company's newspapers.4 Our present determination is limited to the particular controversy which gave rise to these proceedings. In making the determination, we are assigning the disputed work to mailers who are represented by the Mailers Union and not to that Union or its members. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and the entire record in the case, the Board makes the following decision and determination pursuant to Section 10(k) of the Act: 'See New York Mailers' Union No. 6, International Typographical Union, AFL-CIO (The New York Times Company ), 137 NLRB 665, and Local 4, International Brotherhood of Electrical Workers, AFL-CIO (The Pulitzer Publishing Company ), 138 NLRB 335. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees engaged as mailers, currently represented by New York Mailers' Union No. 6, International Typographical Union, AFL-CIO, are entitled to operate the buttons which control the Jampol belt, "jogger," and in-line feeder, during city runs of News Syndicate Co., Inc., newspapers. Newspaper and Mail Deliverers' Union of New York and Vicinity, Independent and News Syndicate Co., Inc. New York Mailers' Union No. 6, International Typographical Union, AFL-CIO and News Syndicate Co., Inc. Cases Nos. 2-CD-233-1 and 2-CD-9233-92. March 18, 1963 DECISION AND DETERMINATION OF DISPUTE This is a consolidated proceeding under Section 10(k) of the Act following charges filed by News Syndicate Co., Inc., herein called the Company.' One of the charges is against Newspaper and Mail Deliverers' Union of New York and Vicinity, Independent, herein called the Deliverers, and alleges that the Deliverers engaged in illegal conduct with respect to the Company's employees in order to force a change in work assignment as between members of the Deliverers and members of New York Mailers' Union No. 6, International Ty- pographical Union, AFL-CIO, herein called the Mailers. The other charge, against the Mailers involves the same work dispute and alleges that the Mailers engaged in like illegal conduct for the purpose of forc- ing the Company to assign the work to members of the Mailers instead of to members of the Deliverers. A duly scheduled hearing was held before George F. Mclnerny, hearing officer, 'on March 27 and 29 and on April 17, 1962. All parties appeared at the hearing and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and 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. Pursuant to Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chair- man McCulloch and Members Rodgers and Fanning]. Upon the entire record in this case, the Board makes the following findings : 1. The Company is the publisher of the New York Daily News, with publishing operations in New York City; its newspapers are sold 1 A third case (Case No. 2-CD-235 ) Involving the same parties, was consolidated for hearing by the Regional Director with the two above-captioned cases. However, that dispute is treated separately in New York Mailers' Union No. 6, International Typo- graphical Union, APL-010 (News Syndicate Co., Inc. ), 141 NLRB No. 49. 141 NLRB No. 50.