Newspaper Guild of New York, Local 3, Etc.

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NOTE-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 1831 Nissen Building, Winston-Salem, North Carolina, Telephone No. 724-8356, if they have any question concerning this notice or compliance with its provisions. Newspaper Guild of New York, Local 3, American Newspaper Guild, AFL-CIO and The New York Times Company New York Mailers' Union Number Six, International Typo- graphical Union, AFL-CIO and The New York Times Com- pany. Cases Nos. 2-OD-309-1 and 2-CD-309-2. December 30, 1964 1 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, Series 8, as amended, following charges filed on August 26, 1964, by the Employer, The New York Times Com- pany, alleging the Newspaper Guild of New York, Local 3, Amer- ican Newspaper Guild, AFL-CIO, and New York Mailers' Union Number Six, International Typographical Union, AFL-CIO (herein called Guild and Mailers, respectively), have violated Section 8(b) (4) (D) of the Act. A duly scheduled hearing was held before Hear-, ing Officer Jacques Schurre on September 29 and October 1, 6, 7, and 8, 1964. All parties appearing were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. The rulings made at the hearings are free from prejudicial error and are hereby affirmed. Briefs were filed by the Employer, and by the Guild and the Mailers who appeared at the hearing as parties-to the dispute. Upon the entire record in the case, the Board 1 makes the following findings : I. THE BUSINESS OF THE EMPLOYER The Employer is the publisher of The New York Times news- paper. Its papers are sold both within and without the State of New York. Its gross revenues during the past year were in excess of $1,000,000. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. '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 Fanning, Brown, and Jenkins] 150 NLRB No. 68. NEWSPAPER GUILD OF NEW YORK, LOCAL 3, ETC. II. THE LABOR ORGANIZATIONS' INVOLVED 749 The Guild and the Mailers' Union are both labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The work at issue The work that gave rise to this proceeding consists of the various stages of operating the FIMA machine 2 recently installed by the Employer for the purpose of addressing wrappers for delivery of newspapers. Prior to the purchase of the FIMA, the Employer's wrappers were addressed by various methods. However, the 'bulk of the wrappers were addressed by two processes involving various stages of activity by members of both the Guild and the Mailers. Guild employees are charged with maintaining the blotters or books containing the' names and addresses of the customers in shipping sequence order., The blotter also contains the name of the designated carrier and directions for shipment as well as the quantity of papers ordered for each 'day of the week; The blotter is'prepared by having a metal addressograph plate made up in the stencil department by a Guild member containing the above listed information about the customer. This plate is used to print the blotter. Guild employees also print the yellow labels 3 and pink labels used for individual mailings that are affixed by Guild employees to the wrapper or directly to the newspaper. The blotter, which lists between two and three thousand accounts is the reference point for the mailers who prepare the top wrappers for the bundled newspapers. Every evening an employee from the mailroom comes to the Guild area on the seventh floor and picks up the blotter books, ' taking them back to the mailroom area. The mailers then -proceed to print the wrappers. In carrying out this 'function, the mailers use a rotary press, called a Brooklyn press, which was introduced into' the wrap- ping operation several years ago. The press is designed to produce two printed wrappers simultaneously with each turn of two identical curved rubber plates. Taking information from the blotter as to the customer,, the quantity, and routing information, the mailer selects the appropriate plates from .a cabinet, puts them in the press and prints the desired number of wrappers. A mailer must be in attendance at all times during the operation of the press. The FIMA, purchased in April 1964, is designed to replace the present method of reproducing wrappers, by employing electronic 2The name "FI11IA" is derived from the first letters of the name of the manufacturer, Fabbrica Italiana Afacchine Aziendali of Italy 3 The yellow labels which account for approximately 30 percent of the wrappers are affixed to the wrappers by the mailers using a Dick stamping machine The Mailer also hand-stamps the bundle size and shipping instructions. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD data processing equipment. The new procedure involves the elimina- tion of the Brooklyn press and, in a sense, the blotter as it is now used in the wrapping operation. Under the FIMA process, all customers, the size of their orders, and their normal shipping pro- cedures will be punched out on an IBM card. At the same time, the same information is embossed on metal printing plates which are sequenced and synchronized with the IBM card. When it is necessary to prepare wrappers, the IBM cards are inserted in the reader section of the FIMA, while the embossed plates are put into feed trays on the printer side. As the information on the card is read by the reader, electric impulses are sent through the connect- ing cables to the printer where, according to the directions received from the reader, the corresponding address plate automatically prints the required number of wrappers. As each card is fully read, and the order finished, the card and the plates are discharged out of the machine into discharge trays, retaining their sequence and synchro- nization. Neither unit has any operational value without the other. Initially, the Employer had intended to install the FIMA in the mailroom. However, being advised that the machine should operate in a dust-free area, the machine was installed in the air-conditioned electronic data processing room. On August 18, 1964, the Employer announced that it would allo- cate to the Guild employees the responsibility for maintaining up- to-date and properly sequenced IBM cards and for inserting the cards in and retrieving them from the reader, and to the Mailers it would allocate the work of operating the reader and printer, including the plate feed, and paper, feed, as well as the removing of the plates and the delivery of the finished wrapper to the mail- room. Following announcement of the Employer's assignment of the work, both the Guild and the Mailers' Union claimed the entire operation of the FIMA to the total exclusion of the competing union,4 and threatened to strike if the proposed work assignments were effectuated. B. Contentions of the parties The Employer contends that the Board should find that a juris- dictional dispute exists and assign the work in dispute to the parties in 'accordance with the assignment announced on August 18, 1964. The Employer contends that this assignment preserves and con- tinues the preexisting functions historically performed by the two Unions prior to the Fima. The Employer asserts that maintaining up-to-date and properly sequenced IBM cards plus the work of 4 The Mailers do not contest assigning to Guild members the function of preparing the cards or plates and maintaining and storing them in proper sequence NEWSPAPER GUILD OF NEW YORK, LOCAL 3, ETC. 751 maintaining and inserting and retrieving the same correspond to the function of maintaining the blotter, in view of the fact that the cards are in fact a substitution for the blotter insofar as the wrapper function is concerned.5 The Employer further asserts that skill is not a factor, that there would be no substantial difference from the standpoint of efficiency or economy of the operation if the disputed work were assigned to Guild members, and that the assignment does not conflict with either contract or the Guild's certification .6 The Guild contends that its members exclusively operate electronic data processing equipment and are the only employees who ever put a punch card in any machine for any reason in the normal course of their work. Thus the Guild argues that 'since the FIMA is an elec- tronic data processing machine, its members ' alone are entitled `to operate it in conformance with their traditional and historical juris- diction, as well as under the terms of the Guild's contract with the Employer.' ' In addition, the Guild contends that the FIMA prints with embossed metal plates, and that this parallels the work Guild members had been doing printing the yellow labels, which, as noted above, are presently used on approximately 30 percent of all wrappers. Finally, the Guild contends that the physical location of the machine, in the electronic data processing department which is presently represented by the Guild in, the commercial unit, com- pels the assignment of the work to its members' on the theory that there has long been a history with the Employer of work assignments based on the physical location of the work in question. The Mailers contends that its members are entitled to the work on the basis of its historical jurisdiction over the work of preparing wrappers, and the fact that the FIMA is basically a printing machine printing directly on the wrapper as had heretofore been done on the Brooklyn press. The Mailers also assert that the location, of the machine in the electronic data processing room is of no conse- quence in view of the reasons which impelled the Employer to locate the machine there. The Mailers also contend that the work of inserting and retrieving cards from the reader should be assigned to its members rather than to Guild members, on the theory that heretofore Guild members only compiled and supplied information to the Mailers by delivering over to the Mailers the blotter, and that it was the Mailers' function to deliver this information via the rubber plates into the printing press. 5 There is no dispute over the continued assignment to the Guild employees of the work of embossing the stencils that will be used in the FIMA printer. 6 The Guild claims that in 1940 It was certified by the Board in Case No . 2-R-1824, as representative of the employees in the commercial department. 7 Both Unions claim that under their contracts new functions that supplant existing work shall fall within the jurisdiction of the work that was supplanted. 775-692-65-vol. 150-49 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Applicability of the statute Section 10(k) of the Act empowers the Board to determine the dispute out of which a Section 8(b) (4) (D) charge has arisen. How- ever, before the Board proceeds with a determination of dispute, it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated. As the record clearly shows that both the Guild and the Mailers' Union threatened the Em- ployer with work stoppages if the proposed assignments of work on the FIMA were effectuated, we find, on the entire record, that there is reasonable cause to believe that a violation of Section 8(b) (4) (D) has occurred and that the work dispute is properly before the Board for determination under Section 10(k) of the Act. D. Me7rits of the dispute Section 10(k) of the Act requires the Board to make an affirma- tive award of disputed work after giving due consideration to various relevant factors, and the Board has held that its determination in jurisdictional dispute cases is an act of judgment based on common- sense and experience in balancing such factors.8 The Guild disputes the assignment of the operation of the FIMA to the members of the Mailers' Union, and the Mailers dispute the assignment of the work of inserting, retrieving, and handling card jam-ups to members of the Guild. The record shows that upon in- stallation of the FIMA machine, approximately 15 members of the Mailers' Union and their supervisors received several weeks training in the operation of the FIMA. Although this work is closely re- lated to, if not identical to, the operation of other electronic data processing equipment, the record in no way indicates that in per- forming this work the Mailers are required to perform a fuller gamut of the specialized skills usually possessed and exercised by IBM operators and technicians. Thus, as to the skills involved,- there is no question but that members of both the Mailers and the Guild are qualified to do the work of operating the FIMA, and that the FIMA is in a sense a relatively simple machine to operate. Past and area practice offer little support to either claim in view of the fact that the FIMA is an entirely new machine that is being put into operation in this country for the first time by the Employer herein. The respective contracts of each Union spell out their jurisdictional limits and both include a clause designed to protect this jurisdiction against encroachment by technological change. To the extent the s International Association of Machinists , Lodge No. 1743, AFL-CIO (J. A! ^ Jones Constructtion Company ), 135 NLRB 1402, citing N.L .R B v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System ), 364 U.S. 573. . NEWSPAPER GUILD OF NEW YORK, LOCAL 3, ETC. 753 contracts aid in determining the dispute, they support an award to members of each disputant of that part of the FIMA work which is a, functional substitute for work they previously performed. We view the dispute to be decided here as a narrow one, limited to the operation of the FIMA by the mailers and the insertion and retrieving of the • IBM cards by the Guild members. Upon con- sideration of all pertinent factors in the entire record, we shall not disturb the Employer's assignment of the disputed work in part to the Mailers' members and in part to the Guild members. It is clear that the Employer recognized that-the use of the FIMA -would have an impact on the work assignments of employees in two separate bargaining units. It is equally clear that the Employer sought to minimize the impact created by the use of this new machine by dividing the work as closely as possible along prior functional lines, taking into consideration the skills and experience heretofore pos- sessed by the employees in the two affected groups, and their adapta- bility to the new machine. An affirmative award in favor of the Mailers as to the operation of the FIMA would be supported by the fact that they are apparently capable of satisfactorily performing that portion of the work already assigned to them. In addition, the record is clear that an award of the operation of the FIMA to the Mailers would comport with rea- sonable standards of efficiency and economy of operation On the other hand, we agree with the Employer's assignment to the Guild employees of the function of inserting and retrieving the IBM cards as well as the responsibility of handling any situation where a card jam-up occurs during the operation of the FIMA. The record clearly shows that the Guild has long had jurisdiction over IBM equipment, the compiling of information to be used therein, and the custody and maintenance of the cards containing the in- formation put into the IBM machines. By assigning this phase of the work to Guild members, the Employer did nothing more than recognize this long-standing function of the Guild employees. In addition, to accept the Mailers' contention would not only divide possession of the cards, but, more importantly, responsibility for their condition, sequencing, and synchronization.lo On the basis of the record as a whole, and on appraisal of the relevant considerations, including the Employer's assignment of the work, the nature of the work, the skills of the employees represented 9 We also reject the Guild 's contention that the physical location of the FIMA in the IBM room compels an award of the work to its members Cf New York MaAZers' Union No. 6, I.T.U., AFL-CIO (News Syndicate Co., Inc.), 141 NLRB 573, 575 10 We do not feel that this award of work is in conflict with the assignment to the Mailers of the inserting and retrieving of the metal plates in view of the fact that they are more durable and less subject to damage or injury while being handled during the operation of the FIMA. In addition, this function closely parallels the former function of handling the rubber plates used on the Brooklyn press. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the two Unions and their ability to perform the work, and the degree of economy and efficiency effectuated, we shall determine the existing jurisdictional dispute by awarding the work of operating the FIMA to the employees of the Employer represented by the Mailers' Union rather than to employees represented by the Guild, and by awarding the work of inserting and retrieving the IBM cards as well as servicing card jam-ups to employees represented by the Guild rather than to employees represented by the Mailers' Union. In making this determination, we are assigning the disputed work to the employees in the bargaining unit presently represented by the Mailers' Union, and not to the Mailers or its members, and to em- ployees in the bargaining unit presently represented by the Guild, and not to the Guild or its members. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings of fact and upon the en- tire record in this case, the Board makes the following determina- tion of dispute pursuant to Section 10(k) of the Act: 1. Employees engaged as mailers, currently represented by New York Mailers' Union Number Six, International Typographical Union, AFL-CIO, are entitled to perform the work of operating the FIMA machine for the purpose of printing addresses on wrap- pers. Employees engaged in preparing, handling, and storing IBM cards, currently represented by the Newspaper Guild of New York, Local 3, American Newspaper Guild, AFL-CIO, are entitled to per- form the work of inserting, retrieving, and servicing IBM card jam-ups in the operation of the FIMA machine. 2. Newspaper Guild of New York, Local 3, American Newspaper Guild, AFL-CIO, is not entitled by means proscribed by Section 8 (b) (4) (D) to force or require The New York Times Company, to assign the operation of the FIMA machine to employees employed in the electronic data processing room who are currently represented by Newspaper Guild of New York, Local 3, American Newspaper Guild, AFL-CIO. New York Mailers' Union Number Six, Interna- tional Typographical Union, AFL-CIO, is not entitled by means pro= scribed by Section 8 (b) (4) (D) to force or require The New York Times Company to assign the work of inserting, retrieving,. and servicing IBM card jam-ups in the operation of the FIMA machine to employees who are currently represented by the New York Mailers' Union Number Six, International Typographical Union, AFL-CIO. 3. Within 10 days of the date of this Decision and Determination of Dispute, Newspaper Guild of New York, Local 3, American Newspaper Guild, AFL-CIO, and New York Mailers' Union Number Six, International Typographical Union, AFL-CIO, shall notify the Regional Director for Region 2, in writing, whether or not they will LEEDS PACKING COMPANY 755 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. Lumberjack Meats, Inc. d/b/a Leeds Packing Company and United Packinghouse, Food and Allied Workers, AFL-CIO James A. Davis, individually and as agent of Lumberjack Meats, Inc. and United Packinghouse, Food and Allied Workers, AFL- CIO. Cases Nos. 10-CA-5560 and 10-CA-5571. December 31, 1964 DECISION AND ORDER On June 5, 1964, Trial Examiner Robert E. Mullin issued his Decision in the above-entitled proceeding, finding that Respondent Employer had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner dismissed the complaint against Respondent James A. Davis. Thereafter, only the Re- spondent Employer filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the en- tire record in this case, including the Trial Examiner's Decision and the exceptions and brief, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order, the Order recommended by the Trial Examiner, and orders that the Respondent Employer, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifications: 1. Add the following as paragraph 2(b), and renumber the fol- lowing paragraphs of section 2 accordingly : "(b) Notify Elvis J. Barnes, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon 150 NLRB No. 67.