Newspaper and Mail Deliverers' Union of New York

578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees engaged as mailers, currently represented by New York Mailers' Union No. 6, International Typographical Union, AFIr-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-23.3-2. 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, AFL-CIO (News Syndicate Co., Inc. ), 141 NLRB No. 49. 141 NLRB No. 50. NEWSPAPER & MAIL DELIVERERS' UNION OF NEW YORK 579 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 News Syndi- cate 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 purposes 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 In the summer of 1961, the Company installed certain machinery- designed to mechanize the operation of stacking, tying, and trans- porting newspapers to delivery trucks as they came off the press. The operation begins with a Cutler-Hammer stacker which counts and stacks the papers as they come off the press escalator. The stacked pa- pers then move along a Jampol (conveyor) belt to a "jogger" device which straightens the stacks as they move to an in-line feeder ma, chine. The in-line feeder moves the bundles at predetermined in- tervals into the wire-tying machine. Coming out of the wire-tying machine, the tied bundles are taken along conveyor belt #1 toward the loading platform wall where conveyor belt #2, running parallel to the wall moves the bundles to certain apertures in the wall where, they are guided onto the loading platform through the apertures, by reflectors. At this point, the tied bundles are loaded onto trucks. This entire operation is automated and is controlled by buttons which operate all of the aforementioned machines and conveyor belts. The work in dispute is the operation of the control buttons which regulate the conveyor belts #1 and #2 on mail runs.2 B. Evidence of illegal conduct The facts giving rise to the dispute are basically uncontested. On the evening of January 10, 1962, the Company attempted for the first time, to operate the stacker on mail run. The Company assigned the operation of belt #1 to a mailer and belt #2 to a deliverer. However, the mailer directed to activate belt #1 and the deliverer directed to activate belt #2 refused to do so, stating that they had been instructed by their respective unions that they were to operate both belts, and failing that, not to operate any at all. Thereafter, the mailroom op- eration was done manually as it had been done in the past. The Com- 2 A run of the Company's newspapers which is primarily destined for delivery to whole- salers outside the city of New York is labeled a "mail run ," as opposed to a run of news- papers destined for delivery to retailers within New York City, which is called a "city run." The Deliverers claims jurisdiction over the operation of belts #1 and #2 on oity rims This jurisdiction has not been contested, and the work of operating belts #1 and #2 on city runs is not in dispute. 708-006-64-vol. 141-38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany filed 8(b) (4) (D) charges, and on February 9, 1962, both unions were enjoined under Section 10(1) of the Act by the U.S. District Court for the Southern District of New York. C. Applicability of the statute The Mailers takes the position that there is no jurisdictional dispute in this case, since there has been an adjustment of the dispute within the meaning of Section 10(k) of the Act.' The adjustment herein, according to the Mailers consists of two arbitration awards. In an arbitration award under the Mailers contract, Peter Seitz, impartial chairman, awarded the disputed work to the Mailers. In a second arbitration under the Deliverers contract, Impartial Chairman George Moskowitz, awarded the disputed work to the Deliverers. The Mailers argues that these two awards, even though inconsistent, constitute a "voluntary adjustment" of the disputed work under Section 10(k) of the Act. We do not agree. These arbitrations do not constitute an adjustment of the dispute within the meaning of Section 10(k) for the very basic reason that the Mailers arbitration would be binding only upon the Mailers and the Company, and the Deliverers arbitration likewise would be binding only upon the Deliverers and the Company. The voluntary adjustment must bind both disputing Unions as well as the Employer to come within the meaning of voluntary settlement as set out in Section 10 (k) .° 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. D. Contentions of the parties The Deliverers' Union contends that it is entitled to the disputed work as a matter of custom and tradition since it had performed the disputed work when the operation was done manually. Moreover, the Deliverers maintains that its contract with the Company gives it jurisdiction over the disputed work and that this jurisdiction was affirmed in the Moskowitz arbitration which awarded the work to it. Likewise, the Mailers argues that custom and tradition, their own S Section 10 (k) reads: "Whenever it is charged that any person has engaged in an un- fair labor practice within the meaning of paragraph 4(D) of section 8(b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute , such charge shall be dismissed." 4 New York Mailers' Union No. 6, International Typographical Union , AFL-CIO (The New York Times Company), 137 NLRB 665. NEWSPAPER & MAIL DELIVERERS' UNION OF NEW YORK 581 contract with the Company, and the Seitz arbitration entitles it to the disputed work. The Company has taken the position that belt #1 is within the work jurisdiction of the Mailers and belt #2 is properly the work of the Deliverers. The basis of this allocation is that these assignments conform generally to the work division as it existed prior to the advent of the stacker, when the work was being performed manually. E. Merits of the dispute As noted above, the disputed work is the operation of the control buttons regulating conveyor belts #1 and #2 on mail runs. It is use- ful to examine the mailroom operation on a mail run prior to the in- troduction of the stacker and its appurtenant equipment . The opera- tion of stacking, tying, and moving newspapers was done by hand with the aid of rolling tables. The papers were sent down to the press- room by conveyor where they were stacked by mailers , and pushed along a table, by a mailer, to a wire-tying machine. At this point, on a mail run, a mailer operated the wire-tying machine. After bundles were tied, a mailer placed them on a rolling table, pushed it ,a short distance toward the doors leading to the loading platform, at which point a deliverer took it through the doors leading to the loading platform where the bundles were loaded into trucks for delivery. With the introduction of the stacker and its button controlled equip- ment, the Company attempted to assign the work in a manner which would most closely parallel the operation as it was done manually. The Company assigned the operation of belt #1 to a mailer since that belt performs the same basic function performed by the mailer who- took the bundles from the wire-tying machine on rolling tables to--the point at which the table was turned over to a deliverer for movement to the loading platform. Similarly , the Company assigned the operation of belt #2 to a deliverer, since that belt now performs the function previously performed by the deliverer who took the roll- ing table from the mailer and moved it to the loading platform. Both Unions, however, rejected the Company allocation insofar as both assert jurisdiction over both disputed belts under their respective contracts with the Company. The Mailers registers its claim under section 2(b) which states, "Both parties to this contract wish to pre- serve during its lifetime the historical jurisdiction of New York Mailers Union No. Six in the plants of the Publishers signatory hereto. It is agreed therefore , that any person employed to operate new ma- chinery designed to supplant or substitute for machinery or work now exclusively under the jurisdiction of the Union shall be a journeyman or apprentice within the bargaining unit represented by this Union." The Deliverers on the other hand, asserts that section 2-C of its con- tract with the Company entitles that Union to the disputed work. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 2-C states, "Whenever new mechanical devices are introduced to perform or aid in the performances of any of the operations included in the bargaining unit, such devices shall be operated exclusively by employees in the bargaining unit." In our opinion, the effect of these two contract provisions, do not support the jurisdictional claim of either union to both belts. The, gravamen of both contract provisions is the maintenance of the status quo whenever manual operations within their respective jurisdictions. became automated. The Company appears to have attempted to. follow the sense of these provisions when it made the work assignments. disputed herein, and the Company's assignment with respect to belt #1 and belt #2 is a practical and reasonable solution to the work dispute herein within the meaning of both contracts since the current work assignments closely parallel the work assignments as they existed when the operation was manual.' From all the foregoing, including the contract provisions them- selves, the assignment made by the Company under these contracts, and particularly the past practice wherein mailers manually per- formed the operation now performed by belt #1 and deliverers per- formed the operation now performed by belt #2, we shall determine the dispute herein by assigning the operation of belt #1 to mailers and the operation of belt #2 to deliverers with respect to mail runs, of the Company's newspapers. Our present determination is limited to the particular controversy which gave rise to these proceedings. In making this determination, we are assigning the disputed work to mailers who are represented by the Mailers' Union and deliverers who are represented by the, Deliverers' Union, and not to those unions or to their members. 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. Employees engaged as mailers, currently represented by New York Mailers' Union No. 6, International Typographical Union, AFL-CIO, are entitled to perform the work of operating belt #1 during mail runs of News Syndicate Co., Inc. newspapers. Employees engaged as deliverers, currently represented by Newspaper and Mail Deliverers' Union of New York and Vicinity, Independent, are en- titled to perform the work of operating belt #2 during mail runs of News Syndicate Co., Inc., newspapers. 6 See Local 4, International Brotherhood of Electrical Workers , AFL-CIO ( The Pulitzer Publishing Company), 138 NLRB 335 ; and International Association of Machinists, Local Lodge 681, District Lodge No. 27, AFL-CIO (American Radiator 6 Standard Sanitary Corporation ), 137 NLRB 1524. CHECKER CAB COMPANY AND ITS MEMBERS 583 2. New York Mailers' Union No. 6, International Typographical Union, AFL-CIO, is not entitled by means proscribed by Section 8 (b) (4) (D) to force or require News Syndicate Co., Inc., to assign the operation of belt #2, during mail runs, to employees engaged as mailers who are currently represented by New York Mailers' Union No. 6, International Typographical Union, AFL-CIO. Newspaper and Mail Deliverers' Union of New York and Vicinity is not entitled, by means proscribed by Section 8 (b) (4) (D), to force or require News Syndicate Co., Inc., to assign the operation of belt #1, during mail runs, to employees engaged as deliverers who are currently represented by Newspaper and Mail Deliverers' Union of New York and Vicinity, Independent. 3. Within 10 days of the date of this Decision and Determination of Dispute, Newspaper and Mail Deliverers' Union of New York and Vicinity, Independent, and New York Mailers' Union No. 6, Interna- tional Typographical Union, AFL-CIO, shall notify the Regional Director for the Second Region in writing, whether or not they will refrain from forcing or requiring News Syndicate Co., Inc., 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. Checker Cab Company and its Members and Local 10, Trans- portation Services and Allied Workers, Seafarers Interna. tional Union of North America, AFL-CIO, Petitioner. Case No. 7-RC-5346. March 18, 1963 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Joseph Kulkis, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds: 1. Checker Cab Company is a nonprofit membership corporation, whose members own and operate taxicabs in the city of Detroit. The principal corporate purposes of Checker, as stated in its charter, are to provide the city of Detroit with an efficient and systematic taxi- cab service, to enable its member taxicab owners to associate for mutual benefit, and to afford a means by which persons engaged in rendering cab service may improve operating procedures and practices and main- tain suitability of equipment. 3 The request for oral argument made by the 286 members of Checker is hereby denied, Since the record, including the briefs, adequately sets forth the issues and the positions of the parties. 141 NLRB No. 64.