Newspaper & Mail Deliverers' Union of New York

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Newspaper and Mail Deliverers' Union of New York City and Vicinity ' and The New York Times Company and New York Mailers' Union Number Six, International Typographical Union, AFL-CIO.2 Case No. 2-CD-255. May 22, 1963 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 Com- pany, alleging that the Deliverers had threatened, coerced, and re- strained the Company, and induced and encouraged employees to en- gage in a refusal in the course of their employment to perform certain services, with an object of forcing or requiring the Company to assign particular work to members of the Deliverers rather than to members of the Mailers. A hearing was held before George F. Mclnery, hearing officer, on November 27, 1962, at which all parties 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 here- by affirmed. Thereafter, the Company and the Deliverers filed briefs which have been duly considered by the Board. Upon the entire record in this case, the Board 3 makes the following findings : 1. The Company is the publisher of The New York Times; its news- papers are sold both within and outside the State of New York. The parties stipulated and we find that the Company is engaged in com- merce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Deliverers and the Mailers are labor organizations within the meaning of the Act. 3. The Dispute : (a) Basic facts The Company maintains three mailrooms from which newspapers are distributed. One of the three mailrooms is located at the West End plant and is basically given over to the distribution of Sunday editions. The other two are located at the main plant, one on the 44th Street side of the building and the other on the 43d Street side. The present dispute involves the 43d Street mailroom. Work in the mailrooms is divided between employees represented by the Deliverers and those represented by the Mailers. Traditionally, the geographical destination of the papers is determinative of much of ' Hereinafter referred to as the Deliverers. 2 Hereinafter referred to as the Mailers. ' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom , Fanning, and Brown]. 142 NLRB No. 41. NEWSPAPER & MAIL DELIVERERS' UNION OF NEW YORK 705 the work assignments, with suburban- or country-bound papers con- stituting one category and city-bulk or papers destined for New York City (and adjacent Hudson County, New Jersey) comprising the other. In all three mailrooms, newspapers, after leaving the presses, are tied, either by hand or by a wire-tying machine. Suburban- or country-bound newspapers also have a wrapper affixed to them indicat- ing their destination. Traditionally, employees represented by the Mailers handled the newspapers to the point of tying and they also tied and wrapped suburban run newspapers, while those represented by the Deliverers tied city-bulk runs and handled all newspapers after they were tied. After tying and wrapping, the newspapers are con- veyed to the loading platform to be placed in trucks. All handling of newspapers at this stage of the operation was, until the dates indicated below, the work of employees represented by the Deliverers but, where city-bulk runs were concerned, employees represented by the Mailers "controlled" direction, in that they guided proper numbers of bundles to each truck and directed trucks to their proper loading area. In 1946 or 1947, a mechanical conveyor called a Jampol belt was installed by the Company at the 44th Street location. The Jampol is an electrically powered conveyor belt operated by "start," "stop," and "reverse" buttons and equipped with manually operated deflector arms which guide newspapers, after tying, to any chosen window leading onto the loading platform. Since installation of the Jampol at 44th Street, the deliverers have continued to perform the functions in handling of bundles after they are tied, but the operation of the Jampol on city-bulk runs has been performed by mailers. In 1958, a Jampol belt was installed at the West End location. With a minor exception,4 mailers have been operating the Jampol for city-bulk deliveries. Between August 20 and September 4, 1962, the Company installed a Jampol belt at 43d Street. There is conflict in testimony as to who operated the belt while it was being installed. Witnesses for the Mailers and the Company testified that it was run by mailers during city-bulk runs, whereas witnesses for the Deliverers contended that, until September 4, 1962, deliverers performed the work. As of Sep- tember 4, however, it is undisputed that operation of the Jampol belt during city-bulk runs had been assigned by the Company to mailers. In the early morning hours of September 5, mailers were performing that work when the business agent of the Deliverers appeared. He demanded the work on behalf of the Deliverers, stating to the circula- tion manager of the Company that the Deliverers "wanted to control all the buttons on the Jampol belt on 43d Street or he would shut 6 The exception pertains to so-called city combos which is work the deliverers have tra- ditionally performed. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD us down." He then ordered deliverers not to handle any bundles of newspapers, ordered a truckdriver member of the Deliverers to pull his truck away from a window so that papers would fall from the window beneath the loading platform, and thus affected a backup of newspapers on the Jampol. Approximately 11/2 hours later, mailers again attempted to operate the Jampol, with the same result. On both occasions, the presses were stopped due to the backlog of newspapers. From September 5 until September 21, 1962, the Jampol was inopera- tive and papers were passed over it by hand to be delivered to the windows. An injunction against the Deliverers was issued by the United States District Court for the Southern District of New York on September 21, 1962. (b) Contentions of the Parties The Deliverers' Union contends that employees represented by it are entitled to the work because the Jampol's function replaced work previously done by them; because their contract provides for their jurisdiction over automated processes replacing work previously done by them; and because it alleges these employees performed the work during the period of the Jampol's installation. It further contends that there was no work stoppage or threatened work stoppage within the meaning of the Act. The Mailers' Union, while asserting that it is neutral in this dispute, claims the work on the basis of its contract, which allegedly would cover the disputed work in the same manner as the Deliverers contend theirs would, and maintains that the assignment to them is consistent with past practice and history. The Company contends that the assignment was made in conformity with its longstanding practice at its other two mailrooms and that, consistent with its contract with the Mailers, it preserves for them the control function which the mailers performed at 43d Street before Jampol was installed. (c) Applicability of the statute The charges, which were duly investigated by the Regional Direc- tor, alleged violation of Section 8 (b) (4) (D) of the Act, and the Re- gional 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). NEWSPAPER & MAIL DELIVERERS ' UNION OF NEW YORK 707 (d) Merits of the dispute In International Association of Machinists, Lodge No. 1743, AFL- CIO (J. A. Jones Construction Company), 135 NLRB 1402, the Board set forth the following criteria to be considered in the making of an affirmative award : The Board will consider all relevant factors in determining who is entitled to the work in dispute, e.g., the skills and work in- volved, certifications by the Board, company and industry prac- tice, agreements between unions and between employers and un- ions, awards of arbitrators, joint boards and the AFL-CIO in the same or related cases, the assignment made by the employer, and the efficient operation of the employer' s business. As indicated above, the work in dispute is the operation of the push- button controls and the manual setting of the deflector arms of the Jampol conveyor belt during city-bulk runs. Neither the Deliverers' nor Mailers' contract with the Company expressly assigns such work to deliverer employees or mailers, respectively b However, each contract provides for continuation of jurisdictional rights where functions performed by the employees covered thereby are replaced by mechani- cal devices. In effect, therefore, both contracts provide that the tradi- tional lines of jurisdiction should be the basis of work assignments whenever machinery replaces the manual operation. At 43d Street, the mailers were performing the work which has been replaced by the Jampol operation in dispute herein. The Company has chosen to assign the work in dispute to the mail- ers. The assignment preserves the historical division of mailroom work based upon geographic destination of the newspapers (the Jampol is operated by deliverers during suburban runs), and the mail- ers have thereby maintained their historic control over the direc- tion and flow of bundles to the trucks for city-bulk deliverers. Also, it is in precise accord with the Company's established practice, for in the two instances where the same situation arose, the same assignment was made. Those assignments have withstood the test of time prevail- ing since 1946 or 1947 at 44th Street and with the exception noted, since 1958 at West End.6 Based upon the foregoing, we determine that the disputed work of operating the control buttons and the deflector arms of the Jampol 5 Cf. The New York Times Company (Newspaper and Mail Deliverers' Union of New York and Vicinity, Independent and New York Mailers' Union No. 6, International Typographical Union, AFL-CIO), 137 NLRB 1435. " There is no consistent pattern of assignment of work of the type in dispute within the newspaper industry, nor are there any arbitration or Joint Board or other similar awards to be considered in this case. 712-548-64-vol. 142-46 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conveyer belt during city-bulk runs belongs to the mailers.? In making this determination, we are, of course, assigning the disputed work to the employees represented by the Mailers, and not to that Union or its members. Accordingly, we find that the Deliverers' Union was not, and is not, entitled by means proscribed by Section 8(b) (4) (D) of the Act to force or require the Company to assign the disputed work to its mem- bers rather than to employees represented by the Mailers. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and the entire record in the 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. Six, International Typographical Union, AFL-CIO, are entitled to operate the start, stop, and reverse buttons and the deflector arms on the Jampol belt during city-bulk runs at the New York Times Company's mailroom at 43d Street, New York City, New York. 2. Newspaper and Mail Deliverers' Union of New York City and Vicinity, Independent, is not entitled by means proscribed by Section 8(b) (4) (D) to force or require The New York Times Company to as- sign such operation of the Jampol belt to employees engaged as deliverers, who are currently represented by Newspaper and Mail Deliverers' Union of New York City and Vicinity, Independent. 3. Within 10 days from the date of this Decision and Determination of Dispute, Newspaper and Mail Deliverers' Union of New York City and Vicinity, Independent, shall notify the Regional Director for the Second Region, in writing, whether or not it 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 to deliverers rather than to mailers. I See News Syndicate Co., Inc. (New York Mailers' Union No. 6, International Typo- graphical Union, AFL-CIO), 141 NLRB 573. Weis Markets, Inc. and Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 195, AFL-CIO, Peti- tioner. Cases Nos. 4-RC-5294 and 4-RC-5295. May 22,1963 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held in Phila- delphia, Pennsylvania, before hearing officer Robert H. Levan. The 142 NLRB No. 87.