Newspaper and Mail Deliverers' Union, Etc.

NEWSPAPER AND MAIL DELIVERERS ' UNION, ETC. 871 This matter of the letters was discussed by Carroll and Naslund. Naslund took the letters to individual employees at their homes. He testified that he asked the employees to sign the letters if they wished. Five employees signed individual but identical letters and Naslund or his wife mailed them to the Union. At sometime after October 2, probably in November, Respondent granted wage increases to vari- ous employees. It is found that the appropriate unit consists of all Respondent's Lewiston-Clarkston employees engaged in the hauling and disposal of refuse, excluding office clerical employees and supervisors, as defined in the Act. It is also found that since Octo- ber 2, 1963, the Union has represented a majority of Respondent's employees in the aforementioned unit. Respondent's statutory obligation was to recognize and to bargain in good faith with the Union and, if agreement was reached, to embody the agreement in a signed contract. Respondent was not obliged to agree with the Union but its conduct in undermining the Union by solicitation of signatures from employees to letters with- drawing their union adherence was not good-faith bargaining as contemplated by the Act.18 This is also true of Respondent's conduct in ignoring and failing to respond to the Union's letter of October 8, and its conduct in failing to meet and bargain there- after. To the same effect is Respondent's conduct in granting wage increases at a time when it was obliged to bargain with the Union regarding wages and other con- ditions of employment. Accordingly, it is found that Respondent has violated Sec- tion 8(a)(1) and (5) of the Act. The customary remedial action is appropriate. This would consist of a recom- mended order directed to Respondent to cease and desist from interfering with the rights of employees guaranteed under Section 7 of the Act. The order would include cessation of any solicitation of employees to secure their repudiation of the Union and the granting of wage increases unilaterally. The order would also require a cessation of the refusal to bargain with the Union. Affirmatively, the recommended order would require that Respondent, upon request, bargain with the Union and, if agreement is reached, that it be embodied in a signed contract. Also recommended would be the posting of a notice to the employees, signed by the Respondent's rep- resentative, setting forth the foregoing remedial action.19 RECOMENDED ORDER Upon the jurisdictional facts, it is recommended that the complaint be dismissed. 13Joy Silk Mills, Inc., 85 NLRB 1263, 1264, enfd as modified 185 F. 2d 732 741 (C A.D C ) ; N L.R.B v. Harry Epstein, et al, d/b/a Top Mode Manufacturing Co, 203 F. 2d 482, 484 (C.A 3), cert denied 347 U.S 912 19 In the event that the Board asserts jurisdiction over Respondent and if it agrees with the findings hereinabove on the merits, I believe that the mechanics of the Recom- mended Order and notice could be handled without a remand to me. Newspaper and Mail Deliverers' Union of New York City and Vicinity i and The New York Times Company 2 and New York Mailers' Union Number Six, International Typographical Union, AFL-C103. Case No. 2-CD-324. May 25. 1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by the Company alleging that the Deliverers had threatened, coerced, and restrained I Hereinafter referred to as the Deliverers Hereinafter referred to as the Company. ' Hereinafter referred to as the Mailers. 152 NLRB No. 79. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company, and induced and encouraged employees to engage in a refusal in the course of their employment to perform certain services, with an object of forcing or requiring the Company to assign par- ticular work to members of the Deliverers rather than to members of the Mailers. A hearing was held before Hearing Officer Winfred D. Morio, on February 17 and 23, 1965, 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 Hear- ing Officer made at the hearing are free from prejudicial error and are hereby affirmed. The Company and the Mailers have filed briefs which have been duly considered by the Board 4 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in con- nection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. Upon the entire record in this case, the Board 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. Upon the basis of the facts stipulated to by the parties, 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 parties stipulated, and we find, that the Deliverers and the Mailers are labor organizations within the meaning of the Act. 3. The Dispute a. The work at issue-background facts The Company maintains mailrooms from which newspapers are dis- tributed at both its West End plant and its 43rd Street plant. The present dispute involves the mezzanine level of the mailroom at the 43d Street plant. Work in the mailroom is divided between employees represented by the Deliverers and those represented by the Mailers. Traditionally, the geographical destination of the papers has been determinative of most of the work assignments, with suburban- or country-bound papers constituting one category for this purpose, and city-bulk or papers destined for New York City (and adjacent Hudson County, New Jersey) comprising another. in the mailrooms, newspapers, after leaving the presses, are stacked (either mechanically or by hand) and tied (apparently an entirely mechanical operation now). The bundles of newspapers, except for 4 The Company also filed a motion to correct certain typographical errors in the trans- cript of the hearing The motion was not opposed, and it was granted by order dated March 31, 1965 NEWSPAPER AND MAIL DELIVERERS' UNION, ETC. 873 city-bulk, also have a wrapper affixed to them indicating their des- tination. Traditionally, and prior to the introduction of the various machines, employees represented by the Mailers handled the news- papers to the point of tying, and they also tied and wrapped all sub- urban 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 conveyed to the loading plat- forms to be placed in trucks. When the newspapers were conveyed to the loading platforms without the use of machinery, this was the work of employees represented by the Deliverers, but where city-bulk runs were involved (those with no wrappers indicating their destination), employees represented by the Mailers "controlled" direction in that they guided the proper number 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 on the main, floor of its 43d Street plant adjacent to the 44th Street side of the building. The Jampol is an electrically powered conveyor belt operated by "start," "stop," and "reverse" buttons and equipped with manually operated deflector arms which guide bundles to any chosen window leading onto the loading platform. The initial Jampol, like those installed later, conveys bun- dles to the loading platform after they are tied. Since the installation of this Jampol, deliverers have continued to perform the function of handling the bundles after they are tied, but the operation of the Jampol on city-bulk runs has been performed by mailers. In September 1962, the Company installed a Jampol on the main floor of the 43d Street plant adjacent to the 43d Street side of the building. The Company assigned the operation of the Jampol during city-bulk deliveries to mailers. A dispute between the Mailers and the Deliverers then arose as to this assignment. The Board subsequently determined the dispute and awarded the operation of the Jampol during city-bulk deliveries to employees represented by the Mailers.5 The Company thereafter installed a second Jampol at this location and, without protest, a mailer has operated it during city-bulk deliveries. The three Jampols discussed above handle direct press runs, which is to say, they do not handle the flow from collating machines. Collat- ing machines combine the sections of Sunday newspapers printed in advance with each other and with the news sections. The mezzanine floor originally contained the collating machines. Deliverers would tie the flow from the collating machines and move the bundles to chutes leading down to the main floor. A mailer controlled the direction of $ Newspaper and Mail Deliverers' Union of New York City and Vicinity (The New York Times Company), 142 NLRB 704. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the bundles on city-bulk runs by indicating to which chute the bundles should be taken. About 1950, Jampols were installed on the mezza- nine. These were ordinarily operated by a deliverer, including times when bundles destined for city delivery were involved. A mailer would indicate to which chute down to the main floor the Jampol should convey the bundles. After the West End plant was opened in 1958, the distribution of Sunday newspapers was transferred completely to that location. A Jampol was installed there in August 1959, and deliverers continued the practice of operating the Jampol in connection with city-bulk runs from the collating machines. A mailer operated the West End Jampol on city-bulk press runs. By 1962, only one collating machine remained on the mezzanine and was used only when the West End plant was overloaded and could not handle all the collating. In late 1964 the last collating machine was removed from the mezzanine, and that floor's Jampols thereupon fell into complete disuse. In 1964 the Company desired to install stacking machines in connec- tion with the four presses on the main floor of the 43d Street plant. Space did not permit installation of four such machines on the main floor and so in October and November 1964 two presses were moved from the main floor to the mezzanine." The old Jampols on the mezza- nine were removed and new series of connecting Jampols, centrally operated , were installed 7 to convey the flow from the two mezzanine presses, after stacking and tying, to chutes leading to the two Jampols on the main floor. The operator of the new mezzanine Jampol would determine into which chute to direct the flow of bundles pursuant to instructions from a mailer working on the main floor. The operation of the control buttons on this mezzanine Jampol during city-bulk press runs is the subject matter of the dispute here. The Company decided to transfer the two presses from the main floor mailing room at 43d Street to the mezzanine floor in January 1964. During June or July 1964 the Company decided to assign the work of operating the planned mezzanine Jampol during city-bulk runs to employees represented by the Mailers. About October 1964, the Company notified officials of both the Mailers and Deliverers that the stacking machines were to be installed and offered to discuss the matter. Discussions between the Mailers and the Company took place, but apparently the Company's decision to assign a mailer to operate the mezzanine Jampol at certain times was not communicated to the 8 What was actually moved to the mezzanine were the outlets to which the production flowed from two presses located elsewhere in the plant. 7 The old Jampols could not be used for the press runs, since they had been installed before Jampols were on the main floor and therefore did not lead to the new mezzanine chutes which led down to the main floor Jampols NEWSPAPER AND MAIL DELIVERERS' UNION, ETC. 875 Mailers. The Deliverers said that it would not discuss the manning of the new operation until it was placed in effect. Shortly before the new mezzanine operation was to begin on the night of December 29, 1964, the presidents of both the Deliverers and the Mailers were pres- ent on the mezzanine floor. The Company notified the president of the Mailers of its assignment of the operation of the new Jampol to a mailer during city-bulk runs and to a deliverer at other times. This was agreeable to the Mailers. The Company then explained the work assignments on the new operation to the president of the Deliverers. When the new operation was functioning and handling suburban and country newspapers, with a deliverer operating the Jampol, the Deliverers' president stated to the Company's representative that if a mailer were placed at the Jampol during the impending city-bulk runs, the Company would "do it at [its] own peril." When the city- bulk runs began, the foreman involved had the deliverer step away from the Jampol and then had a mailer begin to operate it. The Del fiv- ers' president thereupon ordered the deliverer to resume operation of the Jampol and told the deliverer's foreman that the only way to remove the employee from the Jampol would,be to discharge him. Thereafter, both a mailer (pursuant to instruction from his employer) and a deliverer (following his union's instructions) remained at the Jampol control panel, and each pushed the stop and go buttons in an effort to be the one who last had pushed the go button and therefore to be the one who was operating the Jampol. The Jampol naturally responded by stopping and going, but never going far enough to take the bundles to the main floor chutes. The Company's representative eventually terminated the city-bulk run on the mezzanine. At the time of the hearing in this case, the mezzanine presses were used only for country and suburban runs where a deliverer operated the Jampol. An injunction against the Deliverers was issued by the United States District Court for the Southern District of New York on February 26,1965. b. The contentions of the parties The Company contends that its assignment was made in conformity with its longstanding practice of assigning a mailer to operate Jam- pols during city-bulk press runs, a practice based upon its contractual obligation to the Mailers of preserving for them the control function which mailers performed before Jampols were installed. The Com- pany also contends that the mezzanine Jampol was installed to handle the production from two presses which, while they were on the main floor, had flowed to Jampols operated by mailers during city-bulk press runs pursuant to the Board's award in the earlier case. The Mailers contends that it is not involved in a jurisdictional dis- pute with either the Company or the Deliverers and that therefore the 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board has no jurisdiction over it in this proceeding. At the hearing, the Mailers relied upon the evidence presented by the Company to justify the Company's assignment of the disputed work to mailers. The Deliverers did not submit a brief. At the hearing, the Deliv- erers' president testified and justified the Deliverers' claim to the dis- puted work upon the fact that a deliverer had always operated Jam- pols on the mezzanine floor in the past. Counsel for the Deliverers argued at the hearing that a deliverer has always handled bundles after they are tied, and that the practice of a mailer operating a Jam- pol on city-bulk runs is an exception to this rule which is not appicable here. The exception, counsel contended, is based on the fact that the main floor Jampols control the direction of the flow of bundles to trucks, a traditional mailer function. The mezzanine Jampols, on the other hand, do not, but merely flow to the main floor Jampols where a mailer will then control the flow to trucks. c. Applicability of the statute Before the Board may proceed to a determination of dispute pur- suant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8 (b) (4) (D) has been violated. The record shows that the Deliverers' president declined to discuss the manning of the mezzanine Jampol until it was placed in operation. When it was operating on December 29, he stated to the Company's representative that if a mailer was assigned to man the Jampol during the impending city-bulk press run, the Company would be doing so at its peril. The Company's representative reasonably construed this statement as a threat to engage in a work stoppage if the Company's assignment was put in effect. The Deliverers' argument that the state- ment related to an intention to go to arbitration over an adverse assign- ment is completely undermined by the president's subsequent state- ment that the only way to remove the deliverer from the machine was to discharge him. Such conduct is inconsistent with an intention to arbitrate the work assignment, but rather is an invitation to precipi- tate a work stoppage by a discharge. 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. The merits of the dispute Following the holding of the Supreme Court in the CBS case 8 that the Board is to make affirmative awards in jurisdictional dispute cases, S N.L R.B. v. Radio & Television Broadcast Engineers Union Local 1 2 12, etc. (Col2vm- bia Broadcasting System ), 364 U.S. 573. NEWSPAPER AND MAIL DELIVERERS' UNION, ETC. 877 the Board stated in the J. A. Jones case 9 that it would implement that decision by considering "all relevant factors in determining who is entitled to the work in dispute." The Board also stated that "Every decision will have to be an act of judgment based on common sense and experience rather than on precedent." 10 lire shall consider the rele- vant factors here, including as an important factor our decision in an earlier case involving a similar work dispute at the same plant.11 On the basis of all the relevant factors, including our decision in the earlier New York Times case, we shall award the disputed work to employees represented by the Mailers. We note initially that several factors ordinarily of importance in these cases are irrelevant here.12 As we had occasion to state in another case involving the same three parties, "There is no claim by either union, nor does the record in any way indicate that any special skill is required . . ., that either of the two competing groups of employees is more experienced in or capable of doing the disputed work than is the other . . ."13 In addition, it was stipulated at the hearing that there is no uniformity of industry practice with respect to the disputed work. Nor can support for an award of the work in question to one rather than to the other of the unions be found in considering either efficiency or economy of operations. Neither the Deliverers' nor the Mailers' contract with the Company expressly assigns the disputed work to deliverers or mailers, respec- tively. The relevant provision in the Deliverers' contract is "When- "International Association of Machinists , Lodge No. 17 43, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402, 1410. 10 Id., at 411 11 Newspaper and Mail Deliverers' Union of New York City and Vicinity ( The New York Times Company ), 142 NLRB 704. 1' The Deliverers relied at the hearing upon an award by an appeals board interpret- ing the parties' contract in connection with a protest filed by the Deliverers as to the Company's attempt to assign the disputed work to mailers . The appeals board consists of two publisher representatives , two Deliverers' representatives , and Impartial Chair- man George Moskowitz. By majority vote, the board awarded the work to the Deliverers on January 29, 1965. The Mailers did not participate in the proceeding It is there- fore not bound by the award. Carey v. Westinghouse, 375 U . S. 261. The opinion of the impartial chairman reached the conclusion that the contract in- volved supported an award of the disputed work to deliverers because the function performed by the mezzanine Jampol had been historically and traditionally deliverers' work . He considered of no significance the fact that the newly installed Jampol handles press runs whereas the old mezzanine Jampols handled collating machine runs As we point out , it is the fact that the old mezzanine Jampols handled Sunday newspapers that resulted in deliverers operating them during city -bulk runs, not that they were located on the mezzanine We disagree with the impartial chairman that the location of the work is decisive here , for it is clear that the traditional line of demarcation be- tween mailers' work and deliverers ' work on the Company's various Jampols is based not on where the work is done but on the destination of the bundles and, to a lesser extent , whether press or collating machine runs are involved The impartial chairman also construed in a more limited fashion than we do , our earlier New York Times decision involving the main floor Jampols. We therefore conclude that the award does not, and should not , control the disposition of the disputed work. " Now York Mailers' Union No. 6, International Typographical Union , AFL-CIO (The New York Times Company ), 137 NLRB 665, 669. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever new mechanical devices are introduced to perform or aid in the performance of any of the operations included in the bargaining unit, such devices shall be operated exclusively by employees in the bargain- ing unit." The Mailers' contract states that the parties thereto wish to preserve the Mailers' "historical jurisdiction" and that "any person employed to operate new machinery designed to supplant or substitute for machinery or work now exclusively under the jurisdiction of the Union" shall be in the Mailers' unit. As pointed out above, the mezza- nine Jampol handles the flow from two press outlets formerly located on the main floor. The Jampol on the main floor that handled the flow from these presses when they were located there was operated during city-bulk runs by a mailer. We therefore view the mezzanine Jampol as new machinery substituting in part for the operation of the main floor Jampol which, at pertinent times, was operated by mailers. We attach no significance to the former operations on the mezzanine floor where a deliverer operated the Jampol during city- bulk runs, for that Jampol did not perform the function the new Jampol performs. (That function of the old mezzanine Jampols was transferred to the West End plant where the deliverers retained the work formerly done on the mezzanine.) Consideration of the collec- tive-bargaining agreements between the Unions and the Company therefore supports an award of the disputed work to employees repre- sented by the Mailers, for it preserves, as we have just indicated, their "historical jurisdiction." A closely related consideration is the fact that the Company awarded to mailers the operation of the main floor Jampol during city-bulk runs of the presses now on the mezzanine upon the basis of the Board's earlier New York Times decision involving the original main floor Jampol which handled the flow from the other two presses. We grounded our decision in that case on the fact that the Company's award of the work to mailers "preserves the historical division of mail- room 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 direction and flow of bundles to the trucks for city-bulk deliveries." 14 Obvi- ously no distinction could be drawn between our award in that case and the operation of the second Jampol belt installed on the main floor to handle the flow from two other presses. (The Deliverers acquiesced in the Company's award of the operation of the second Jampol on city-bulk runs to mailers.) It is virtually as clear to us that the installation of a new Jampol on the mezzanine to handle the 14 Newspaper and Mail Deliverers' Union of New York City and Vicinity (The New York Tnnec Company, 142 NLRB 704, 707 NEWSPAPER AND MAIL DELIVERERS' UNION, ETC. S79 flow from the two presses moved there from the main floor should not disturb the pattern that has now been established in operating the Jampols at the Company 's plants. A number of Jampols have now been installed by the Company. Without exception , mailers operate them during city-bulk press runs. This company practice has been established to some extent by acconi- modation between the Deliverers and Mailers, but primarily by the Board's earlier decision and assignments based upon it. As a result of this pattern of Jampol operation, the mezzanine Jampol is in fact a partial substitute for the main floor Jampol which was operated by a mailer at the relevant time. We are convinced that a continuation of this pattern sensibly resolves the current dispute and will make even clearer the established jurisdictional lines. Accordingly, upon the record as a whole, we shall determine the dis- pute by assigning the work of operating the mezzanine Jampol when it is handling city-bulk press runs to employees represented by the Mailers. Our present determination is limited to the particular con- troversy which gave rise to these proceedings. In making this deter- mination, we are not assigning the disputed work to members of the Mailers or to that Union. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings, and the entire record in the case, the National Labor Relations Board makes the following Determination of Dispute. 1. Employees engaged as mailers, currently represented by New York Mailers' Union Number 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 press runs on the mezzanine floor of 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 is not entitled by means proscribed by Section S(b) (4) (D) to force or require The New York Times Company to assign such operation of the Jampol belt to employees engaged as deliverers, who are currently represented by that, Union. 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 shall notify the Regional Director for Region 2, in writ- ing, 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.