Newspaper And Mail Deliverers' Union Of New York And Vicinity

680 DECISIONS OF THE 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- 514 November 14 1988 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS The charge in this Section 10(k) proceeding was filed February 19 1988 by the Employer alleging that the Respondent Newspaper and Mail Deli verers Union of New York and Vicinity (Drivers) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by New York Mailers Union No 6 (Mailers) The hearing was held on June 8 1988 before Hearing Officer Lisa D Pol lack Thereafter the Employer filed a brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board affirms the hearing officers rulings finding them free from prejudicial error On the entire record the Board makes the following find rags I JURISDICTION The Employer a New York corporation is en gaged in the production, distribution and sale 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 the Drivers and the Mailers are labor organizations within the meaning of Section 2(5) of the Act II THE DISPUTE A Background and Facts of Dispute The Employer is engaged in the production dis tnbution delivery and sale of the New York Daily News a daily and Sunday metropolitan newspaper The Employer prints its daily editions and the black and white portions of its Sunday editions at three plants located in Brooklyn New York Garden City New York and Kearney New Jersey The Sunday editions of the newspaper have three components the main sheet the regional sec tions and the color rotogravure ( color and roto ) package Distribution and delivery functions for the Sunday editions are performed at the Kearney New Jersey Delivery Center On January 28 1988 the News advised the Drivers that (1) it had decided to move the Deliv ery Center from its location in building 73 to empty warehouse space in building 1 in its Kearney facility (which previously housed the News insert functions prior to the subcontracting of that oper ation) and that (2) the Mailers claimed certain por tions of the work to be performed at the relocated facility The Drivers responded by threatening to strike the News if the News gave any of the work to employees represented by the Mailers In February 1988 the News relocated its Deliv ery Center to building 1 which is approximately 1 mile away from the old facility The relocated work involves the offloading of inserts bundled by the subcontractor from trucks retying if neces sary and the loading of the bundles on the News trucks for direct delivery to retailers This work is performed exclusively by employees represented by the Drivers B Work in Dispute The disputed work involves the movement of the pretied and bundled Sunday National Edition the National Edition Sunday comics the National Edition Parade magazine ( throwover )1 and the handling of promotional materials2 after they are offloaded from trucks and before they are placed at the staging area for reloading on delivery trucks at the relocated Kearney New Jersey Delivery Center facility 3 C Contentions of the Parties The Employer contends that the work in dispute has been properly assigned to employees represent ed by the Drivers and is the same as the work awarded to them by a prior Board decision 4 but that the Drivers have nevertheless 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 contentions ' The National Edition color and roto differs from the News regular metropolitan Sunday edition in that it has no other materials (advertise ments) inserted within and the Parade magazine is delivered with the paper uninserted 2 Promotional materials are special advertisements promoting an event or activity e g the auto show that the News receives to distribute in its delivery trucks to specific areas or facilities 2 The description of the work in dispute has been modified to reflect the Mailers disclaiming interest in offloading any materials received at the Delivery Center * Newspaper & Mail Deliverers (New York News) 282 NLRB 642 (1987) 291 NLRB No 104 NEWSPAPER & MAIL DELIVERERS (NEW YORK NEWS) The Mailers contends that the work in dispute is work that its members previously performed at the News now defunct insert facility D Applicability of the Statute Both Unions continue to claim the disputed work The Drivers threatened a strike if the work was reassigned to employees represented by the Mailers In the absence of any other agreed on voluntary method for resolution of the instant dispute the parties stipulated that the Board s 10(k) proceeding was an appropriate method of resolving this 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 on method for voluntary ad justment of the dispute within the meaning of Sec tion 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 of firmative award of disputed work after considering various factors NLRB v 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 , 1 Certifications and collective bargaining agreements There is no outstanding relevant certification Both the Drivers and the Mailers have collec tive bargaining agreements with the Employer that arguably could support a claim for the work in dis pute We find therefore that the collective bar gaining agreements are not determinative of this work dispute 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 relocated Delivery Center to employees rep resented by the Drivers This assignment is consist ent with the practice established in conjunction with the Employer's original establishment of the Delivery Center in its old location in building 73 681 At the relocated Delivery Center all bundles are intended for direct delivery The drivers receive the pretied bundles from the subcontractor at the receiving truck bays The drivers unload the trucks and the bundles of insert material are placed onto a conveyor belt for tying if necessary and loading on the Employers delivery trucks These same procedures are followed weekly for the approxi mately 10-12 skids of the Sunday National Edition the National Edition comics and the Parade maga zine ( throwover ) This is also true for any pro motional materials that the Employer may receive This work is performed exclusively by employees represented by the Drivers Until August 1986 the Employer operated an insert operation at the Kearney plant Employees represented by the Drivers unloaded the inserts and employees represented by the Mailers stored sorted and stocked the inserts Mailers tied the bundles going to wholesalers and drivers tied bun dles destined for direct delivery to retailers Driv ers then loaded all bundles on the delivery trucks On August 2 1986 the Employer subcontracted the insert operation which included all work pre viously performed by mailers and as a result all employees represented by the Mailers were laid off At that time the Employer opened the Deliv ery Center where employees represented by the Drivers unload the inserts bundled by the subcon tractor and retie and load the bundles onto trucks In February 1988 the Delivery Center was moved and occupied the same space where the pre 1986 insert operations had been located Other than the physical location there has been no signif icant change in the handling of the work in dis pute Therefore we find no merit to the Mailers claim that it is attempting to preserve work per formed by the employees it represents Furthermore the Employers assignment is con sistent with the Board s 10(k) decision5 in Newspa per & Mail Deliverers (New York News) 282 NLRB 642 (1987) in which we awarded similar work to employees represented by the Drivers (over em ployees represented by the Mailers) as follows Employees of New York News Inc repre sented 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 en S Although our award did not specifically address the Sunday National Edition and National Edition comics there was testimony in the record regarding these publications However there was no record testimony re garding promotional materials See also Typographical Union 6 (New York News) 270 NLRB 303 (1984) Newspaper & Mail Deliverers (New York News) 270 NLRB 307 (1984) 682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD closed in the comics of the Sunday edition of the New York Daily News wrapping tying and/or labeling them if necessary and reload mg them onto delivery trucks at the Kearney New Jersey Delivery Center facility [282 NLRB at 644] Accordingly this factor favors an award to em ployees 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 relocated Delivery Center is currently staffed exclusively by employees represented by the Drivers There is no work at the relocated De livery Center of the kind mailers performed at the Kearney insert facility Further the relocation did not require the Employer to hire any new employ ees or change any of the functions previously per formed by employees represented by the Drivers at the old facility Regarding the handling and movement of the Sunday National Edition the National Edition comics and the Parade magazine bundles this work consumes approximately 1 hour a week of the Drivers represented employees worktime Similarly about two or three times a year, the Em ployer receives between 6-15 skids of promotional material for distribution This material is received already tied in bundles Any movement of these bundles from the receiving bays to the staging area for loading on the Employers delivery trucks con sumes a total of 2 to 3 hours a year Thus as we previously found in Newspaper & Mail Deliverers (New York News) 6 [I]f mailers were required to be employed at the Center The News would not be able to 6 282 NLRB at 644 use them unless they were given functions that are currently being performed by drivers or which fall within the exclusive jurisdiction of the drivers Hiring obligations with respect to the Drivers however would remain un changed because drivers could perform all tasks required at the Delivery Center Furthermore if there were any need to reas sign employees or fill down time at the Deliv ery Center The News could shift Drivers rep resented employees at will [and] the use of Mailers represented employees would require the hiring of Mailers foremen-adds tional supervision not required by The News at this time This is also true in the instant matter Accordingly this factor favors assignment of the work to employees represented by the Drivers Conclusions After considering all the relevant factors we conclude that employees represented by the Driv ers 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 the Drivers 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 moving the pretied and bundled Sunday Nation al Edition the National Edition comics the Parade magazine ( throwover ) of the New York Daily News and any and all promotional materials after they are offloaded from trucks and before they are placed at the staging area for reloading on delivery trucks at the relocated Kearney New Jersey De livery Center facility