Washington Mailers Union No.29

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Washington Mailers' Union No. 29 and The McCall Printing Company, Mid-Atlantic Division and Bookbinders and Bindery Workers Union No. 144. Case 5-CD-134 III. THE DISPUTE A. Background and Facts of the Dispute August 22, 1969 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by The McCall Printing Company, Mid-Atlantic Division , herein called the Employer , alleging a violation of Section 8(b)(4)(D) by Washington Mailers' Union No. 29 , herein called the Mailers . Pursuant to notice , a hearing was held on May 22 and May 23, 1969, in Washington, D.C., before Maurice J. Nelligan , Jr., Hearing Officer. The Employer, the Mailers, and Bookbinders and Bindery Workers Union No. 144, herein called Bookbinders, appeared at the hearing and were afforded full opportunity to be heard , to examine and to cross-examine witnesses , and to adduce evidence bearing on the issues . All parties filed briefs with the National Labor Relations Board. 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. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error . They are hereby affirmed . Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer is engaged in the business of printing magazines at its Glen Dale, Maryland, plant. During the preceding year the Employer sold and shipped directly to customers located outside of the State of Maryland goods valued in excess of $50,000. We find, accordingly, 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. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Mailers and the Bookbinders are labor organizations within the meaning of Section 2(5) of the Act. The dispute concerns the work of operating mailing heads which affix address labels onto magazines and other publications. At the Employer's plant, this work had heretofore been performed by mailers, using Cheshire machines, after the magazines had been stitched or stapled together and cut to uniform size in the bindery department,' and then manually stacked on skids and moved to the mailroom. After completion of the mailing head operation, mailers separated the magazines according to zip code, tied them in bundles, and placed them in mail bags. In order to eliminate the need for carrying magazines from the bindery to the mailing department, and to eliminate the function of hand feeding the Cheshire machines, as well as to provide the added feature of a loose card inserter, the Employer introduced a KAA Magnacraft machine into the plant. Such a machine can be automatically fed by a rolling belt when attached to the bindery equipment. Under this layout, after a magazine is trimmed by the binder, the Magnacraft will perform a loose card insertion function as well as the mailing head function formerly performed by the Cheshire machine. Operation of the Magnacraft mailing head is almost identical to the operation of the Cheshire. A period of 30 days to 6 months is required in order to become proficient in the operation of a mailing head. When the Magnacraft was purchased, mailers received factory training in its operation. They also operated two dry runs after it was delivered. In October 1968, the Employer began to utilize the loose card inserter on the Magnacraft, assigning this operation to the bookbinders. The Magnacraft was attached to the bindery equipment and operated in the bindery section which is separated by a 9-foot aisle from the area where mailers normally work. On January 29, 1969, the Employer operated the Magnacraft mailing head for the first time. On that occasion, the mailers ran the mailing head, and performed the separating, tying, and bagging functions at the machine rather than in the mailroom. The bookbinders then shut off the equipment and walked off the job. The Bookbinders made the assignment to the mailers, of operating the Magnacraft, the subject of a grievance under the Bookbinders' contract. In a proceeding to which the Mailers were not made a party, the arbitrator ruled that the collective-bargaining contract between the Employer and the Bookbinders required the Employer to assign the disputed work to the bookbinders since, under that agreement, the bookbinders are entitled to operate "mailing equipment when attached to 'By use of machinery operated by the Bookbinders 178 NLRBNo.28 WASHINGTON MAILERS' UNION NO. 29 existing bindery equipment". The Mailers threatened to walk off the job if this award were honored and, thereafter, in an arbitration proceeding involving the Employer and the Mailers, to which the Bookbinders were not made a party, the Mailers prevailed. The arbitrator found that the work in dispute is covered by the contract's grant to the mailers of the work of "the attaching of addresses . or the imprinting or attaching of addresses .. . by automatic mailing machines." The arbitrator further found that the contract did not limit the mailers to "strict geographical lines within the confines of the plant." Neither union has been certified by the Board. It is clear that the operation of the KAA Magnacraft mailing head was within the contemplation of the parties when both the Bookbinders' contract and the Mailers' contract were negotiated and that the Employer, in each case, contracted to assign the disputed work. Although the Employer initially assigned the work to mailers, and, as noted, provided for their factory training in the operation of the new machine, the Employer changed its position at the hearing herein and now seeks to have the Board assign the work to bookbinders. If the Board honors this request, the Employer has stated its intention to assign the work of separating, tying, and bagging magazines after they have been addressed, to employees represented by another Bookbinders' Union, Local 42. Employees represented by that local normally perform the subsidiary operations when Local 144 bookbinders operate a machine. At the two or three other plants in the United States which use the Magnacraft and employ both employees represented by the Mailers and employees represented by Bookbinders, mailers operate the mailing heads. On the other hand, this Employer uses the Magnacraft in its Dayton, Ohio, plant, where mailers are not employed, and the mailing heads are operated by bookbinders. Numerous printing plants throughout the country utilize bookbinders to operate mailing head machines. B. The Work in Dispute The work in dispute is the operation of mailing heads on Magnacraft KAA machines at the Employer's Glen Dale, Maryland, plant. C. Contentions of the Parties In support of its contention that the disputed work should be assigned to bookbinders, the Employer argues that such an assignment would be more economical and would provide for greater flexibility than would be obtained by having the work performed by mailers. Thus, the Employer asserts that the operator of the bindery equipment could also operate the mailing head and would also 195 be available for other bindery work when work on the integrated machine was not available. Additionally, as noted, if the mailing head operation is assigned to bookbinders, the Employer intends to assign the subsidiary mailing functions to members of another Bookbinders' local, rather than to mailers. The last mentioned anticipated assignment, it is estimated, would result in a $1 per hour per employee savings for the Employer as a result of different contract wage rates. The Bookbinders relies on the factors of employer preference, contract language, and a supposed industry custom under which when two mechanical functions are integrated, jurisdiction over the previously lesser function passes to the craft with jurisdiction over the previously greater function. The Bookbinders also points out that its members perform a substantial amount of mailing work, including the operation of mailing heads, in commercial printing shops throughout the country. The Mailers relies on the fact that operation of the Magnacraft mailing head virtually duplicates the work its members have long performed on the Cheshire2 and is in fact, a direct substitution therefor. It also urges the Employer's initial assignment of the work to mailers, the superior skills of mailers in performing this operation, and the fact that area and industry practices with respect to the operation of the Magnacraft mailing head, limited as they are, favor mailers. Finally, the Mailers points out that if the disputed work is awarded to bookbinders, and the Employer then follows through on its stated intention to assign the subsidiary mailing functions to employees represented by another Bookbinders' local, mailers could loose a substantial number of jobs. D. Applicability of the Statute The charges herein allege a violation of Section 8(b)(4)(D) of the Act. The record shows, and the Mailers concedes, that on March 27, 1969, Mailers threatened to strike if the disputed work were assigned to bookbinders. On the basis of the entire record, we conclude 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. E. The Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant factors.' 'Mailers will, in any event, continue to operate the Cheshire on those items that go directly to the mailroom from the pressroom and do not pass through the bindery. 'N L R B v. Radio Television Broadcast Engineers Union Local 1222, International Brotherhood of Electrical Workers (Columbia Broadcasting System ), 364 U S 573, International Association of Machinists, Lodge No 1743, AFL-CIO (JA Jones Construction Company), 135 NLRB 1402, 1411 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Certain factors usually considered by the Board in jurisdictional dispute cases provide little assistance in determining the instant dispute. Thus, neither union has been certified by the Board as the exclusive bargaining representative of employees engaged in performing the work in question. However, both unions obtained from the Employer contract language clearly conferring jurisdiction over the work, and these contracts have been so construed by arbitrators. While the evidence pertaining to area and industry practice favors the Mailers, in that other printing plants, utilizing the Magnacraft and employing both mailers and bookbinders, have assigned the disputed work to mailers, use of the Magnacraft is not sufficiently widespread for a clear practice to have emerged. The factor of skill is initially favorable to mailers both because of their previous experience in operating the Cheshire machine and because they have received factory training on the Magnacraft mailing head. However, it is clear from the record that given a period of training, bookbinders are capable of performing the work. The Employer's contention that assignment of the work to bookbinders will effect an economy and provide greater flexibility of operations does not withstand scrutiny. Thus, if the work is assigned to bookbinders, the same employee who operates the bindery equipment could also take charge of the mailing head. On the other hand, if the mailers are assigned the work, the employee assigned to the operation of the mailing head would also assist in the performance of the subsidiary mailing functions. In either case, the total number of employees needed to perform the bindery and mailing functions on, and adjacent to, the machine would be the same. At the hearing, the Employer ultimately conceded that it could achieve no economy from the resolution of this dispute in and of itself, and that any "straight hourly economy" would be derived solely from the wage savings to be realized by the reassignment of subsidiary mailing functions now performed by mailers to employees represented by another Bookbinders' local, a matter not now before us. In these circumstances, where other factors do not predominate in favor of the claim of either union, the factor of most compelling significance is that under established past practice at the Employer's plant the operation of the mailing heads has been a function lodged in the mailers unit." Although the work in dispute is to be performed on the Magnacraft rather than the Cheshire, the work is a direct substitution for, and in lieu of, identical work performed by mailers on Cheshire mailing heads in the same plant. Transferral of this function from mailers to bookbinders would have the effect of subtracting from the quantum of work available for members of the mailers' unit while adding pro tanto to that of the bookbinders. Moreover, as observed by the arbitrator to the contract dispute between the Employer and the Mailers: Finally, it makes good collective bargaining sense for the employees in the Mailers unit to operate the KAA mailing head because the work is identical with the Cheshire machines. It would not be in keeping with sound collective bargaining principles for the operators of the KAA mailing head to be excluded from a bargaining unit of employees performing precisely the same function because they are working across an open aisle 10 to 20 feet away. In light of the above, we conclude that mailers represented by Washington Mailers Union No. 29 are entitled to the disputed work and we shall ,determine the dispute in their favor. In making this determination, we are assigning the disputed work to mailers who are represented by Mailers Union No. 29, but not to the Mailers Union or its members. Our present determination is limited to the particular dispute which gave rise to this proceeding. 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 this proceeding, the National Labor Relations Board hereby makes the following Determination of Dispute. Mailers employed by the Employer who are currently represented by Washington Mailers' Union No. 29, are entitled to perform the work of operating the mailing heads on Magnacraft KAA machines at the Employer's Glen Dale, Maryland, plant. 'See Women's Bindery Union, Local No. 42, International Brotherhood of Bookbinders, AFL-CIO (National Publishing Division , McCall Corporation), 150 NLRB 388