Mailers' Union 79 (Oxmoor Press)

BIRMINGHAM MAILERS' UNION NO. 79 Birmingham Mailers' Union No. 79 a/w International Mailers Union and Oxmoor Press, Inc. and Graphic Arts International Union, Local 540 Graphic Arts International Union, Local 540 and Oxmoor Press, Inc. and Birmingham Mailers' Union No. 79 a/w International Mailers Union. Cases 10-CD-265 and 10-CD-266 September 22, 1977 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Oxmoor Press, Inc., herein called the Employer, alleging that Birmingham Mailers' Union No. 79 a/w International Mailers Union, herein called the Mailers, and Graphic Arts Interna- tional Union, Local 540, hereinafter called the GAIU, have violated Section 8(b)(4)(D) of the Act. Pursuant to notice, a hearing was held before Hearing Officer Michael B. Frost on June 10, 1977. All parties appeared and were afforded full opportu- nity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding 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 proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Employer, an Alabama corporation with its principal place of business in Birmingham, Alabama, is engaged in the business of commercial printing. During the past year, the Employer shipped and sold goods having a value of $50,000 to customers located outside the State. The parties also stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 232 NLRB No. 55 II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the labor organizations involved are labor organizations within the meaning of Section 2(5) of the Act. II1. THE DISPUTE A. The Background Facts The Employer employs approximately 167 employ- ees in its commercial printing business. Its bindery room employees are represented by the Graphic Arts International Union, Local 540; its mailroom em- ployees by the Birmingham Mailers Union No. 79. The Employer's current operation calls for various component parts of a printed product to be brought into its bindery room where they are trimmed and stitched into a finished product by a machine called a McCain trimmer (hereinafter called stitcher). The finished product is then placed on skids to be transported to the mailroom. In the mailroom the product is run through either a Kirk-Rudy or a Cheshire mailing machine which cuts and affixes address labels. The product is then sorted by zip code and tied into bundles for the post office. The mailing process requires four employees: one to feed the address labels into the machine, one to sort the addressed products, one to tie the products into bundles, and one to sack the bundles for the post office. These functions are identical with respect to either the Kirk-Rudy mailing machine or the Cheshire mailer and have been performed only by mailroom employees represented by the Mailers. The McCain stitcher, located in the bindery room, has only been operated by employees represented by the GAIU. Bindery room employees also stack and load the stitched product for transport into the mailroom. The Employer now desires to implement an "in- line" operation involving, on a part-time basis, the physical connection of the Kirk-Rudy machine to the McCain stitcher in the bindery room. In-line opera- tion eliminates the need to stack and transport the finished products into the mailroom, as well as the need to feed them into the mailing machines since a hopper system would convey the products directly from the McCain stitcher into the Kirk-Rudy machine. The Employer plans to continue to operate the Kirk-Rudy machine separately for some jobs in its present mailroom location, where it will continue to be operated by mailroom employees. Only the operation of the Kirk-Rudy mailing machine while in-line in the bindery room is in dispute herein. 279 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Work in Dispute The work in dispute involves the operation of a Kirk-Rudy mailing machine in a sequential in-line operation with the McCain stitcher in the Oxmoor Press, Inc., bindery in Birmingham, Alabama. C. The Contentions of the Parties The Employer contends that it has no preference as to how the disputed work is assigned, but that it would be more economical for employees represent- ed by the Mailers to continue operating the Kirk- Rudy machine since they are already trained; and training requires anywhere from 6 months to a year. Both Unions contend that the work should be assigned to employees they represent. The Mailers asserts its claim to the work based on its collective- bargaining agreement with the Employer, company and industry practice, the skills needed to perform the disputed work, potential job loss, and the Employer's alleged preference for assigning the work to trained employees. The GAIU argues that employees represented by it should be assigned the disputed work to avoid fragmenting the Employer's work force and to follow industry practice. It also argues that it would be more efficient for its members to operate the Kirk-Rudy machine when it is in-line because it would facilitate repairs if employees operating both machines were represented by the same union. 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 and that the parties have not agreed upon a method for the voluntary adjustment of the dispute. In March 1977, the Employer informed the GAIU that it intended to move the Kirk-Rudy mailing machine into its bindery for in-line operation with the McCain stitcher. The Employer further suggested that the machine should continue to be operated by employees represented by the Mailers. Thereupon the GAIU representatives informed the Employer that, if the work were assigned according to the Employer's proposal, its members would refuse to operate the companion stitching machine and would engage in a work stoppage. The Employer, in turn, informed representatives of the Mailers of the GAIU's response to its proposed assignment and the Mailers replied that, if the work were not assigned to N A.L.R.B v. Radio & Television Broadcast Engineers Union, Lcoal 1212, International Brotherhood of Elerrical Workers. AFI (O10 (Colutnbia Broadcasting Svsten m, 364 U.S. 573 (1961 ). employees represented by it, "it would take action up to and including a strike." On the basis of the entire record, we conclude that there is reasonable cause to believe that violations of Section 8(b)(4)(D) have occurred and that there exists no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that this dispute is properly before the Board for determination. E. 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 factors.' The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case. 2 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements Neither Union's current collective-bargaining agreement with the Employer specifically mentions the in-line operation of the Kirk-Rudy mailing machine. The GAIU agreement, in relevant part, defines the jurisdiction of the GAIU employees as: . . . including all of the Company's Bindery Room work heretofore recognized by the Compa- ny and the Union ... and includes such work as: folding, jogging, tipping, stacking, and feeding all signatures of magazines after their delivery to the Bindery . . . removing bound copies of maga- zines from the trimmer and stacking for delivery to the mailroom .... The stacking of magazines for delivery to the mailroom will be eliminated by the in-line operation of the mailing machine and the stitcher. The Mailers contract provides: This Agreement and the jurisdiction of the Union covers employees of the Company who perform work heretofore recognized by the Company and the Union as Mailing Room work and includes such work as addressing . . . tagging, stamping, labeling, bundling and wrapping ... sorting, .... tying, sacking . . . and dispatching of papers, envelopes and magazines whether done by hand or machine .... [Emphasis supplied.] 2 International Associatrion of Machinists, Lodge ,o. 1743, A FL CIO (J. A. Jones Construction Companvy, 135 NLRB 1402 (1962). 280 BIRMINGHAM MAILERS' UNION NO. 79 Although the jurisdictional clause of the GAIU contract appears to cover all work performed in the bindery room, it speaks only of work already recognized as bindery room work by the Employer and the Union. On the other hand, the Mailers agreement specifically provides that addressing and labeling, whether by machine or by hand, will be performed by mailers. Since these functions are performed by the Kirk-Rudy machine whether it is located in the mailroom or in the bindery, the mailers have the stronger contractual claim to the disputed work. Accordingly, we find that the agreements favor assignment of the work in dispute to the employees represented by the Mailers. 2. Company and industry practice The Employer began using the Kirk-Rudy machine in 1974, and only mailers have operated it or any similar mailing machine. With respect to industry practice, employee Wen- dell Barrett testified that employees represented by the Mailers operated a Kirk-Rudy mailing machine in-line with a stitcher machine (operated by employ- ees represented by the GAIU) at a printing company located in Des Moines, Iowa. A number of the Employer's competitors have mailing machines in- line with stitchers, operated by members of the GAIU. However, the GAIU members' operation of the mailing machines is mostly at locations where the GAIU represents both bindery room and mailroom employees. The limited evidence of industry practice is too meager to demonstrate a pattern of assignment of the disputed work to employees represented by either Union. We do find that the Employer's current assignment of the Kirk-Rudy machine to mailers favors their claim to the work in dispute. 3. Relative skills The disputed work involves the operation of the Kirk-Rudy mailing machine. The record shows that employees represented by the Mailers have operated the machine since 1974 and possess the requisite skills to do so. The Employer's plant personnel manager, Baldone, testified that the skills involved take 6 months to a year to learn. None of the present bindery room employees, represented by the GAIU, presently possesses the required skills. Accordingly, we find that the mailers' skills favor an assignment of the work to them. 4. Economy and efficiency Under the Employer's present system its products are stitched together in the bindery room by a McCain stitcher, then stacked onto skids, and transported to the mailroom where they are fed into the Kirk-Rudy mailing machine. Plant Manager Siegert testified that the proposed in-line operation of the Kirk-Rudy machine with the McCain stitcher would be more efficient than the present system because it would permit the finished products to be fed directly into the mailing machine, thus eliminat- ing the need for stacking, transporting into the mailroom, and feeding the product manually into the mailing machine. Despite the increased efficiency of the in-line system, the Employer will continue to operate the Kirk-Rudy machine separately in the mailroom for some jobs. Neither Union contests the greater efficiency of the in-line system. The Mailers, however, contends that it would be more efficient for employees represented by it to operate the machine in both the bindery and the mailroom since they are experienced in operating the machine and the training period is 6 months to a year. The GAIU argues that it would be more efficient for employees it represents to operate the Kirk-Rudy machine when it is used in the bindery in order to facilitate repairs in the event of a break- down. In view of the Employer's intention to continue operating the Kirk-Rudy machine separately in the mailroom for some jobs, as well as using it in-line in the bindery room, we find that efficiency favors assignment to the employees represented by the Mailers, who are already operating the machine in the mailroom. 5. Job loss According to Employer's plant superintendent. Siegert, the in-line operation of the Kirk-Rudy machine will result in the elimination of the jobs of those employees who stack stitched products and transport them into the mailroom and those who feed the stitched products into the mailing. Despite the projected job elimination, however, Siegert testified that none of the affected employees would be laid off if the disputed work is assigned as the Employer has proposed to the employees represented by the Mailers. Siegert could not predict the job loss consequences of an assignment to the employees represented by the GAIU. Wendell Barrett, a mailroom employee, testified that mailroom employees would initially lose 35 percent of their work if the in-line operation of the Kirk-Rudy machine were assigned to GAIU mem- bers. Bobby Loyed, a bindery room employee, testified that it was his understanding that the Employer planned to switch about 90 to 95 percent of the remaining work from the Cheshire mailing 281 DECISIONS OF NATIONAL LABOR RELATIONS BOARD machine in the mailroom to the Kirk-Rudy in-line operation in the bindery room. Should that happen, almost all of the address labeling now being done in the mailroom would be performed in the bindery room. There is no evidence that employees represented by the GAIU will lose their jobs if the disputed work is not awarded to them. In contrast, much of the work performed in the mailroom on mailing machines will eventually be done in-line in the bindery room with a job loss for mailroom employees should they not be assigned the disputed work. We conclude that the factor of job loss favors an assignment of the disputed work to employees represented by the Mailers. Conclusion Upon the record as a whole, and after full consideration of all relevant factors, we conclude that employees who are represented by the Mailers are entitled to perform the work in dispute. We reach this conclusion relying on the collective-bargaining agreements, company practice, relative skills, econo- my and efficiency of operation, and job loss factors, all of which favor this assignment. In making this determination, we are awarding the work in question to employees who are represented by the Mailers, but not to that Union or its members. The present determination is limited to the particular controversy 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 makes the following Determination of Dispute: 1. Employees of Oxmoor Press, Inc., who are represented by Birmingham Mailers' Union No. 79 a/w International Mailers Union, are entitled to perform the in-line operation of the Kirk-Rudy mailing machine at the Birmingham, Alabama, plant of the Employer. 2. Graphic Arts International Union, Local 540, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Oxmoor Press, Inc., to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Graphic Arts Inter- national Union, Local 540, shall notify the Regional Director for Region 10, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination. 282