New York Mailers' Union No. 6

794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New York Mailers' Union No. 6 and The New York Times Company. Case 2-CD-493-1 Newspaper & Mail Deliverers' Union of New York & Vicinity and The New York Times Company. Case 2-CD-493-2 II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Mailers and Deliverers are labor organizations within the meaning of Section 2(5) of the Act. September 26, 1975 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed on April 25, 1975, by The New York Times Company (herein referred to as the Times or Employer) alleging in Case 2-CD-493-1 that New York Mailers' Union No. 6 (herein referred to as Mailers) and in Case 2-CD-493-2 that Newspaper & Mail Deliverers' Union of New York & Vicinity (herein referred to as Deliverers) had violated Sec- tion 8(b)(4)(D) of the Act. A hearing was held pur- suant to notice at New York, New York, on May 28, 1975, before Hearing Officer Elbert F. Tellem. The Times, Mailers, and Deliverers appeared at the hear- ing and were all afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. None of the parties have filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are here- by affirmed. Upon the basis of the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE COMPANY The parties stipulated, and we find, that the Times, with an office and principal place of business located at 229 West 43d Street, Borough of Manhattan, City and State of New York, is engaged in the business of publishing The New York Times, a morning daily and Sunday newspaper of general circulation.' ' During the past year the Times derived gross revenues in excess of $500,000 from its operations. During the same period, its purchases of news- print and ink which were shipped to it in interstate commerce directly from outside the State of New York exceeded $50,000 , and its gross revenues received from shipments of its newspapers to customers located outside the State of New York exceeded $50,000. III. THE DISPUTE A. Background and Facts of the Dispute A portion of the Times' circulation is made up of mail subscriptions wherein daily newspapers are in- dividually labeled with subscribers' names and ad- dresses and sent to them through the U.S. Postal Ser- vice. Prior to late April 1975, these newspapers were made into bundles according to Post Office ZIP codes and tied with rope by mailers. The bundles were then passed across a table to deliverers, who placed them in mail sacks and attached address la- bels. The mail sacks were then sent to a truck, load- ed, and delivered to the Post Office. In April 1975, the Times decided to install new tying machines and eliminate the use of mail sacks in this operation. Pursuant to its collective-bargain- ing agreement with the Deliverers, the Times sought arbitration with respect to its intention to discontinue using mail sacks. The impartial chairman's opinion and award permitted discontinuance of the use of mail sacks and awarded the work of placing the wrapper and operating the tying machine in pro- cessing out-of-town mail subscriptions to the Deliv- erers. On April 23, 1975, the Times assigned the work of placing a wrapper on bundles of newspapers and op- erating a tying machine for the processing of out-of- town subscriptions to its employees who are mem- bers of or represented by the Mailers. B. The Work in Dispute While the charge in this case, as well as portions of a related civil case stipulated to by the parties and the impartial chairman's award, refers to the disput- ed work as involving out-of-town subscriptions, the record shows that 10 percent of the Times' daily mail subscriptions are sent to subscribers within the city of New York. At the hearing representatives of the Mailers and Deliverers claimed this work. Inasmuch as the record shows that processing sub- scriptions for New York City subscribers involves the same operations as processing out-of-town subscrip- tions and is claimed by both the Deliverers and Mail- ers, we shall include processing New York City sub- scriptions in our definition of the work in dispute. We find, therefore, that the disputed work is the 220 NLRB No. 118 NEW YORK MAILERS' UNION NO. 6 work involved in placing wrappers on bundles of newspapers and operating tying machines for the processing of mail subscriptions. C. The Contentions of the Parties The Times and the Mailers contend that the dis- puted work should be awarded to employees repre- sented by the Mailers in accordance with the Employer's assignment and consideration of such factors as efficiency, economy, and preservation of historical lines of jurisdiction. The Deliverers argues that the Board should award the disputed work to employees whom it represents, in conformity with the above-mentioned arbitration award and its collective-bargaining agreement with the Times and because the disputed work replaces work previously performed by deliverers. The Deliv- erers also contends that the prior Board decision in- volving processing mail subscriptions for the Sunday Times 2 is limited to the particular dispute encom- passed in that proceeding and should not affect the decision herein. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant 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 parties stipulated, and we find, that on April 17, 1975, Mailers Business Agent Edward Mitchell warned the Times that it would strike and engage in a work stoppage unless the work in dispute was as- signed to employees represented by Mailers. On April 23, 1975, Deliverers Business Agent Charles Panattiere threatened the Times with similar action unless the disputed work was assigned to employees represented by Deliverers. The Times, on April 23, 1975, assigned the disputed work to its employees represented by the Mailers. Accordingly, we find 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. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after taking into account the evidence supporting the claims of the parties and balancing all relevant fac- tors.' 2 New York Mailers' Union Number Six, International Typographical Union AFL-CIO, 171 NLRB 834 (1968). 795 We shall set forth below those factors which we find relevant in determining the dispute herein. 1. Collective-bargaining agreements , arbitration awards, and prior Board decisions Consideration of these factors does not favor an award of the disputed work to either mailers or deliv- erers. Thus, although the Deliverers contract would tend to favor awarding the work to deliverers, the Mailers collective-bargaining agreement also pur- ports to cover the disputed work. The impartial chairman does give the disputed work to deliverers in the arbitration award, but the Mailers was not a par- ty to that proceeding and all relevant factors under Section 10(k) were not considered. Finally, the lan- guage of the prior Board decision, referred to above, does limit the award therein to the circumstances of that particular dispute and therefore is not determi- native of the instant case. 2. Employer's assignment, economy, and efficiency John Murphy, production director at the Times, testified that the Employer's purpose in eliminating the use of mail sacks was to increase the efficiency of processing mail subscriptions by increasing the load- ing capacity of the trucks that deliver the newspa- pers to the Post Office. He also testified that in mak- ing the assignment to mailers the Employer took into consideration potential savings in personnel costs, in- asmuch as the new mechanized system of tying and wrapping will eliminate manual handling of the newspaper bundles between the mailroom operations and the loading of the trucks. Accordingly, we find this factor favors awarding the disputed work to em- ployees represented by the Mailers. 3. Past practice The parties stipulated that area and industry prac- tice are irrelevant to this dispute. With respect to the Employer's past practice, the record shows that em- ployees represented by the Mailers have traditionally done the addressing and tying into bundles of the newspaper mail subscriptions destined for both out- of-town and New York City subscribers. The Deliv- erers, on the other hand, points out that in the past employees which it represents have done the work of placing destination labels on the mail sacks, which 3 N L R B v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad- casting System], 364 U.S. 573 ( 1961), International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402, 1410-11 (1962). 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are replaced in the new system by the wrapper at- tached by the automated tying machine. The record shows that by eliminating the use of mail sacks the work of inserting the labels has also been eliminated and that the addressing functions which remain have always been done by mailers. We therefore find that this factor favors awarding the disputed work to employees represented by the Mail- ers. Conclusion Upon consideration of all pertinent factors in the entire record, in particular the Employer 's assign- ment, efficiency and economy of operations, and the Employer's past practice, we conclude that the em- ployees of the Times who are represented by the Mailers, and not those represented by the Deliverers, are entitled to the work in question and we shall de- termine the dispute in their favor. Accordingly, we shall award the disputed work to those employees who are represented by the Mailers, but not to that Union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the Act, upon the ba- sis of the foregoing findings and the entire record in this proceeding, the Board hereby makes the follow- ing Determination of Dispute: 1. Employees of The New York Times Company, New York, New York, currently represented by New York Mailers' Union No. 6, are entitled to perform the work involved in placing wrappers on bundles of newspapers and operating tying machines for the processing of mail subscriptions. 2. Newspaper & Mail Deliverers' Union of New York & Vicinity is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require The New York Times Company to assign the above work to deliverers represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Newspaper & Mail Deliverers' Union of New York & Vicinity shall noti- fy the Regional Director for Region 2, in writing, whether or not it will refrain from forcing or requir- ing The New York Times Company, by means pro- scribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute in a manner inconsistent with the above determination.