Newspaper And Mail Deliverers' Union Of New York And Vicinity

642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Newspaper and Mail Deliverers' Union of New York and Vicinity and New York News, Inc. and New York Mailers' Union No. 6. Case 22-CD- 485 7 January 1987 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS The charge in this Section 10(k) proceeding was filed 7 August 1986 by the Employer, alleging that the Respondent, Newspapers and Mail Deliverers' Union of New York and Vicinity (Drivers) violat- ed Section 8(bX4)(D) of the National Labor Rela- tions Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to em- ployees represented by the New York Mailers' Union No. 6 (Mailers). The hearing was held 10 September 1986 before Hearing Officer Bennett Muraskin. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. I., JURISDICTION The Company, a New York corporation, is en- gaged in the production, distribution and We of newspapers at various facilities, including its facili- ty at Kearney, New Jersey, where it annually re- ceives gross revenues exceeding $200,000. The par- ties stipulate, and we find, that the Employer is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Drivers and Mail- ers are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Company is engaged in the production, dis- tribution, delivery, and sale of the New York Daily News, a daily and Sunday metropolitan newspaper. The Company prints its daily editions and the black and white portions of its Sunday edition at three plants, located in Brooklyn, New York; Garden City, New York; and Kearney, New Jersey. The Sunday edition of the newspaper has three components: the main sheet, the regional sec- tions, and -the -color and rotogravure (color and roto) package. Until August 1986,1 the Kearney plant contained an "insert operation" at which the editorial compo- nents of the color and roto section were combined with materials provided by advertisers., As a result of declining productivity of the insert operation at the Kearney plant, The News decided to contract out the insert operation-the work of bundling ad- vertising and magazine inserts into the comics sec- tion of the "Sunday edition. Employees represented by the Drivers unloaded the inserts, and employees represented by the _Mailers stored, sorted, and stacked ' the inserts. Depending on whether the bundle of inserts was destined for delivery to a wholesaler or for direct delivery to a retailer, ,em- ployees represented by either Union operated the tying machine. Employees represented by the Mail- ers tied the bundles going to wholesalers and em- ployees represented by the Drivers tied bundles in- tended for direct delivery. Once the bundles' of in- serts were tied, employees represented by the Driv- ers loaded them onto delivery trucks. As of 2 August, The News began to use a sub- contractor to bundle all the inserts and to deliver directly those bundles destined for wholesalers. As a result, all employees represented by the Mailers were laid off. On 3 August The News opened a new delivery facility in Kearney, New Jersey (the Delivery Center), where it unloads the inserts bun- dled by the subcontractor for retailers , and reties and loads the bundles onto trucks for direct deliv- ery to them. This work is performed by ;employees represented by the Drivers. No bundling of inserts is performed at the Delivery Center. On 5 August George McDonald, president of the Mailers, told George 'Thornton, vice, president of labor relations at The News, that the Mailers claimed certain work performed at the Delivery Center and advised Thornton that it would insti- tute an arbitration proceeding to enforce its claim. Thornton then informed Joseph Cronin, president of the Drivers, of his conversation with McDonald. Cronin threatened to strike The News if any of the work was taken away from employees represented by the Drivers or if The News agreed to partici- pate in arbitration. Rather than strike or picket, the Drivers agreed to refrain from any economic action pending resolution of this dispute by the Board. B. Work in Dispute The disputed work involves the off-loading of in- serted products, i.e., a package of printed inserts ' All dates are for 1986, unless otherwise indicated. 282 NLRB No. 97 NEWSPAPER & MAIL DELIVERERS (NEW YORK NEWS) enclosed in the comics of the Sunday edition of the New York Daily News wrapping, tying; and/or la- beling them is necessary, and reloading them onto delivery trucks at the Kearney, New Jersey Deliv- ery Center facility.2 C. Contentions of the Parties The Employer contends that the work in dispute has been properly assigned to employees represent- ed by the Drivers but that the Drivers has never- theless threatened to strike The News to prevent it from reassigning the work in dispute to employees represented by the Mailers. The Drivers does not dispute the Employer's contention. The Mailers contends that the work in dispute is work that its members previously performed at an- other facility. D. Applicability of the Statute Both Unions continue to claim the disputed work. The Drivers threatened a work stoppage if the work were reassigned to the Mailers. The Mail- ers commenced an action in United States District Court seeking an order compelling tripartite arbi- tration of the dispute, but the request was denied by the court, deferring to the Board for resolution in a Section 10(k) proceeding. No agreed-upon method exists for the resolution of the instant dis- pute. We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute ' is properly before the Board for deter- mination. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors. NLRB x Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an' act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 2 We have modified the description of the work in dispute to identify the specific facility involved. 643 `l. Certifications and collective-bargaining agreements There is no outstanding relevant certification. The Drivers and the Mailers each has a collec- tive-bargaining agreement with the Employer and asserts that its respective agreement supports its claim to the disputed Work. To the extent that the collective-bargaining agreements support such competing claims, we find that the contract provi- sions are not determinative of this work dispute. The' Mailers' jurisdictional clause, at section 3(a) of its collective-bargaining agreement with the Em- ployer, provides that jurisdiction "heretofore rec- ognize shall be preserved," and that the Employer and the Union intend that the agreement "neither take away nor add to such jurisdiction." The juris- dictional description which follows, at Section 3(b), preserves all "mailing work," but precludes either party from invoking the jurisdictional description "to change present work." Section 3(c), reads: "Both parties to this Agreement wish to preserve during its lifetime the historical jurisdiction of New York Mailers' Union No. 6 in the plants of the Publishers signatory." Section 1(k) is a general pro- vision referring to the parties' "historical rights" and their mutual desire to preserve them "to the greatest extent possible." Section 17 allows the Employer control over the manner of wrapping or tying if the work is performed in accordance with section 3. None of these provisions specifically grants the work to Mailers-represented employees, and section 3(c) preserves Mailers' jurisdiction only as it has historically existed in the particular plant. Similarly, the Drivers' collective-bargaining agreement with the Employer does not , expressly refer to the specific work in dispute. Section 2, under "Occupation Coverage," contains no lan- guage specifying that such, work belongs to em- ployees it represents. Section 9 reads: "All parts or sections of a newspaper destined for delivery within the Metropolitan Area, printed in a plant not owned or controlled by the Publisher of such newspaper shall be delivered in bulk from the place of printing to the plant or plants operated' by the publisher, and .. , . they shall be handled by em- ployees represented by the Union." Neither of these provisions explicitly grants the disputed work to employees represented by the Drivers. Accordingly, we find that this factor does not favor an award to employees represented by either Union. 2. Company preference and past practice The Employer has assigned the work in dispute at the Delivery Center to employees represented 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Drivers. This assignment is consistent with the practice established in connection with the insert operation that existed at the Kearney plant until August 1986, inasmuch as the disputed work is virtually the same as the work the drivers per- formed at that plant while such operation lasted. There, drivers unloaded all inserts. At the Delivery Center, drivers have been assigned the task of un- loading the inserts when they arrive from the sub- contractor. At the Kearney plant, drivers tied bun- dles intended for direct delivery. At the Delivery Center, all bundles are intended for direct delivery and drivers have been assigned the task of placing the second tie to secure the bundles that arrive from the subcontractor. Finally, at the Kearney plant, once bundles of inserts were tied, drivers re- loaded them onto delivery trucks. Similarly, at the Delivery Center, the task of reloading the bundles onto the delivery trucks following tying and/or la- beling has been assigned to drivers. Therefore, we find no merit to the Mailers' claim that they are at- tempting to preserve work previously performed by employees it represents. The Employer also pre- fers this assignment. Furthermore, in 1973 an arbitrator resolved a number of jurisdictional disputes involving The News, the Drivers, and the Mailers, one of which concerned which group of employees would tie bundles of the Sunday gravure product at The News' "Newspoint" facility located in Long Island City, New ' York. (Newspoint was closed in 1982 when the insert operation was moved to the Kear- ney plant.) The arbitrator concluded that since de- livery was direct (as opposed to delivery to whole- salers), "the work of tying for such deliveries should be given to drivers." Although the tying of the inserted product is now performed by the sub- contractor, the second tie placed by Drivers-repre- sented employees is consistent with its jurisdiction over direct deliveries. Such an assignment is also consistent with the Board's 10(k) decisions involv- ing this Employer in New York Mailers' Union No. 6 (New York News), 270 NLRB 303 (1984), and Newspaper & Mail Deliverers' Union (New York News), 270 NLRB 307 (1984). Accordingly this factor favors an award to employees represented by the' Drivers. 3. Area and industry, practice The evidence is insufficient to establish an area or industry practice concerning, the work in dis- pute. Accordingly, this factor favors neither group. 4. Relative skills Because performance of the work requires no special skills, this factor favors neither group. 5. Economy and efficiency of operations The Delivery Center is currently staffed exclu- sively by employees represented by the Drivers. There is no work at the Delivery Center of the kind Mailers performed at the Kearney facility. Thus, if mailers were required to be employed at the Center, The News would not be able to use them unless they were given functions that are cur- rently being performed by drivers or which fall within the exclusive jurisdiction of the drivers. Hiring obligations with respect to the Drivers, however, would remain unchanged, because driv- ers could perform all tasks required at the Delivery Center, which substantially involves receiving in- serted product destined for direct delivery, and preparing and loading that product for delivery, i.e., tying bundles, making up "key bundles," and loading trucks. These tasks were not traditionally performed by employees represented by the Mail- ers. Furthermore, if there were any need to reas- sign employees or fill down time at the Delivery Center, The News could shift Drivers-represented employees at will, because all the work to be per- formed at the Center would be within the Drivers' jurisdiction. Finally, the use of Mailers-represented employees would require the hiring of Mailers' foremen-additional supervision not required by The News at this time. Accordingly, this factor favors assignment of the work to employees repre- sented by the Drivers. Conclusions After considering all the relevant factors, we conclude that employees represented by Drivers are entitled to perform the work in dispute. We reach this conclusion relying on company prefer- ence, past practice, and economy and efficiency of operation. In making this determination, we are awarding the work to employees represented by Respondent, not to that Union or its members. The determination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of New York News, Inc. represented by Newspaper and Mail Deliverers' Union of New York and Vicinity are entitled to perform the work of off-loading inserted products, i.e., a package of printed inserts enclosed in the comics of the Sunday edition of the New York Daily News, wrapping, tying, and/or labeling them if necessary, and reloading them onto delivery trucks at the Kearney, New Jersey Delivery Center facility.