New York Mailers' Union No. 6

National Labor Relations Board - Board Decisions

Jan 14, 1970

180 N.L.R.B. 729 (N.L.R.B. 1970)

NEW YORK MAILERS' UNION NO. 6
New York Mailers' Union Number 6, International
Typographical Union; and Newspaper and Mail
Deliverers' Union of New York and Vicinity and
Long Island Daily Press Publishing Co., Inc.
Cases 29-CD-78, 79
January 14, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
This is a consolidated proceeding under Section
10(k) of the National Labor Relations Act, as
amended, following charges filed by Long Island
Daily Press Publishing Co., Inc., herein called the
Company, against New York Mailers' Union
Number 6, International Typographical Union,
herein called the Mailers, and against Newspaper
and Mail Deliverers' Union of New York and
Vicinity, herein called the Deliverers. The charges
allege that the Mailers and the Deliverers engaged
in conduct violative of Section 8(b)(4)(D) of the Act.
A hearing was held before Bernard Wray , Hearing
Officer, on September 8 and 9, 1969, at which all
parties appeared and were afforded full opportunity
to be heard, to examine and cross-examine
witnesses , and to adduce evidence bearing on the
issues. Thereafter, the Company, the Mailers, and
the Deliverers 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 proceeding to a
three-member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE COMPANY
The Company publishes the Long Island Press, a
daily newspaper, at its premises located at Jamaica,
New York. During 1968, its gross revenue from the
sale of newspapers and advertising was in excess of
$ 1 million. It has membership in and subscribes to
various national and international news services; and
publishes various nationally syndicated features and
advertisements of products which are sold
nationally. We find that the Company is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that it will effectuate the purposes
of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
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We find that the Mailers and the Deliverers are
labor organizations within the meaning of Section
2(5) of the Act.
III. THE DISPUTE
A. The Work in Issue; Background Facts
This proceeding arises out of a dispute concerning
work assignments in the Company's new mailroom
involving the operation, maintenance, and servicing
of automatic tying machines and a conveyor system
activated by an automatic control panel. The tying
machines make wire-tied bundles of newspapers
received from the pressroom, and the conveyor
system carries the bundles of newspapers to an
outside loading platform. Conflicting claims for
work performed on this machinery and equipment
have been made upon the Company by the Mailers
and the Deliverers, who represent mailers and
deliverers, respectively, in separate bargaining units.
On June 3, 1969, the Company commenced
operations in the new mailroom, which was designed
to replace the old mailroom and the lower
mailroom.
In the old mailroom, newspapers were tied into
bundles by manual operation. A mailer would stack
bundles and would push the stacks of newspapers
into the throat of a manual tying machine and the
operator of this machine would step on a treadle to
activate the feeding of wire that tied the stack into a
bundle. When newspapers were destined for city
delivery, i.e., by truck, deliverers operated the
manual tyers.When newspapers were to be delivered
by mail or train, the mailers performed the
operation.
The mailers supplied the tyer with wire and made
all minor repairs to it, such as that caused by wire
breakage. They cleared jams of newspaper bundles
on the conveyor belts inside the mailroom, a
function which the deliverers would also sometimes
perform. The deliverers cleared all the belts that
carried bundles beyond the mailroom to the outside
loading platform. These conveyor belts were started
by a mailer and shut off by a deliverer stationed on
the platform.
In the lower mailroom, there was automatic tying
equipment which was operated by the mailers. When
the automatic tyer required major repairs, it was
converted to manual operation. Then, it was
operated by the deliverers when newspapers were
tied for city delivery by truck; and by mailers for
mail or train delivery. The deliverers and mailers
rope tied "odds," which are bundles containing
fewer than 25 or 50 copies per bundle.
Of the approximately 450,000 newspapers being
printed daily, about two-thirds of them were
manually tied by the deliverers in the old mailroom,
except for about 10,000 copies which were handled
180 NLRB No. 112
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the mailers . The remaining one-third was
bundled by mailers on the automatic typing machine
in the lower mailroom.
B. The Work Stoppages
Soon after production was commenced in the new
mailroom on June 3, 1969, while a mailer was
operating an automatic tying machine, Deliverers'
Business Agent Alvino told Irving Newhouse, the
Company's Production Manager , that unless a
deliverer was assigned to the machine , there would
be a work stoppage. Newhouse refused to oblige
Alvino and Alvino directed the deliverers to cease
work. The new mailroom was shutdown and
remained closed until June 20, 1969, during which
period the Company used its facilities in the old
mailroom and the lower mailroom.
On June 11, 1969, while a mailer was operating
the automatic tying machine, Deliverers ' President
Carl Levy told Nicholas Miranda, the Company's
Production Superintendent , that he had ordered the
deliverers on the loading platform to cease work
until a deliverer was assigned to the machine,
because he had seen a mailer performing duties
usually performed by a deliverer. (It appears that a
newspaper bundle had been caught in the throat of
the automatic tyer and that a mailer had pushed a
button which inactivated the machine so that it
could be operated manually until this bundle cleared
the machine .) Levy also insisted , under threat of a
work stoppage , that a deliverer be assigned as a
standby whenever the automatic tyer was in
operation . Under protest , Miranda assigned a
deliverer to the automatic tyer, which was converted
to manual operation . When Mailers ' Chapel
Chairman Jack Kaufman learned of this, he
instructed the mailers to stop work in the lower
mailroom and told Miranda that he would shut
down all operations if the Company permitted this
"subterfuge" manual operation . The lower
mailroom resumed operations later in the day, after
an accord was reached between representatives of
the Mailers and the Deliverers providing for a
temporary assignment of a deliverer as a standby at
the automatic tyer; the Company agreed under
protest.
The new mailroom resumed operations on June
20, 1969, following a 30-day temporary award by
the Impartial Chairman under the grievance
procedure of the bargaining contract between the
Company and the Deliverers. Although the record is
not entirely clear , it appears that the award provided
for a temporary assignment of a deliverer as a
standby at the automatic tyer, similar to the
arrangement previously made in the lower
mailroom. It is conceded by Edward Mitchell, the
Mailers ' business representative , that he caused a
work stoppage in the new mailroom during the
morning of June 20, because he observed a deliverer
in the conveyor belt area, which Mitchell claimed
was within the Mailers' jurisdiction. In fact,
Mitchell claimed that all work in the new mailroom
should be assigned to mailers . After the deliverer
left the area at Newhouse's request, he returned
with Alvino, the Deliverers' business agent, who told
the deliverer to return to the belt area. Newhouse
then told Alvino to remove the deliverer and Alvino
threatened to stop the presses if the Company
assigned a mailer to that area. In behalf of the
Deliverers, Alvino sought the assignment of
deliverers to the automatic tyers and claimed all
work in the new mailroom beyond the automatic
tyer. As a result of these conflicting claims, the
Company discontinued operations in the new
mailroom on June 20. Work was resumed in the
new mailroom on August 1, 1969, on which date a
temporary injunction was issued against the Mailers
and the Deliverers by the United States District
Court for the Eastern District of New York.
C. Applicability of the Statute
Before the Board may proceed with a
determination of 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. As shown above, there is evidence
that the Mailers and the Deliverers threatened and
caused work stoppages with an object of forcing or
requiring an assignment of work. We therefore find
that there is reasonable cause to believe that
violations of Section 8(b)(4)(D) have occurred, and
that the dispute is properly before us for
determination.'
D. 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,
and the Board has held that its determination in
jurisdictional dispute cases is an act of judgment
based upon common sense and experience in
balancing such factors.'
Many of the factors usually considered by the
Board in these cases , such as certifications,
bargaining contracts , and skills, provide little, if
any, basis for determining the instant dispute.
Neither the Mailers nor the Deliverers has been
certified by the Board as the exclusive bargaining
representative for any of the Company's employees;
each of the existing contracts between the Company
and the respective unions provide for jurisdiction
over automated equipment similar to that involved
herein ; and no special skills are required in the
'The Deliverers ' contention that a manning dispute is involved herein
and not a jurisdictional dispute is without merit It is clear that the
Deliverers is seeking to force the Company to assign certain work to its
members rather than to employees who are members of the Mailers.
'International Association of Machinists. Lodge No 1743. AFL-CIO
(J A. Jones Construction Company). 135 NLRB 1402, 1411.
NEW YORK MAILERS' UNION NO. 6
performance of the work in dispute.
There is, however, the Company's past practice in
the assignment of work that is a relevant factor. The
Company sought to be guided by the past duties of
the mailers and deliverers when it divided the work
in the new mailroom between them . Thus, the
mailers, who had operated , maintained , and serviced
the automatic tying machine in the lower mailroom
for many years, were assigned the same
responsibilities on the same machine in the new
mailroom , except that , also as in the lower
mailroom , the deliverers were assigned the task of
manually operating the machine with respect to
newspapers destined for city delivery , during a
malfunction which required major repairs.
The conveyor belts in the old and lower
mailrooms were started by the mailers and stopped
by the deliverers. Similar functions were assigned to
the disputants in the new mailroom.
The Company assigned to the deliverers the
operation , maintenance , and servicing of the
automatic conveyor system , composed of elevators,
deflectors and, lowerators , including the clearing of
jams on these devices ; and the maintenance and
servicing of the loop conveyor belts , which includes
the clearing of jams on the belts . The clearing of
jams which occurred on conveyor belts inside the old
and lower mailrooms was normally performed by
mailers , but the deliverers also performed this work
and they had the responsibility of clearing jams on a
higher percentage of the overall length of the
conveyor belts , which led to the outside loading
platform . In the main , the sorting of tied bundles of
newspapers for proper distribution has traditionally
been performed by deliverers. The elevators,
deflectors , and lowerators now perform the sorting
of bundles for delivery.
As the Board stated in the Jones case, an
affirmative award in this type of proceeding must be
"an act of judgment based on common sense." The
Company ' s division of the work assignments in the
new mailroom closely parallels the jobs previously
performed by mailers and deliverers. They are based
upon past experience and practice and traditional
work functions , and represent an effort by the
Company at a practical and reasonable solution to
the dispute herein . No persuasive reason has been
advanced for disturbing the work assignments made
by the Company and we shall determine the dispute
as the Company has resolved it.
Our present determination is limited to the
particular controversy which gave rise to this
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proceeding . In making this determination, we are
assigning the disputed work to mailers who are
represented by the Mailers and to deliverers who are
represented by the Deliverers, and not to those
unions or to their members.
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
with regard to the Company's new mailroom:
1. Employees employed as mailers , currently
represented by New York Mailers' Union Number
6, International Typographical Union, are entitled
to perform the work of operating , maintaining, and
servicing of the automatic tying machines ; and the
starting of the loop conveyor belts.
2. Employees employed as deliverers, currently
represented by Newspaper and Mail Deliverers'
Union of New York and Vicinity, are entitled to
perform the work of operating, maintaining, and
servicing the automatic conveyor system , including
elevators, deflectors , and lowerators ; stopping,
maintaining , and servicing the loop conveyor belts,
including the clearing of jams on these belts, and
operating the automatic tying machines after they
are converted for manual operation due to required
major repairs , with respect to newspapers destined
for city delivery.
3. The Deliverers' Union is not entitled, by means
proscribed by Section 8(b)(4)(D) of the Act, to force
or require Long Island Daily Press Publishing Co.,
Inc., to assign the work awarded in paragraph 1, to
employees represented by it.
4. The Mailers ' Union is not entitled, by means
proscribed by Section 8(b)(4)(D) of the Act, to force
or require the Company to assign the work awarded
in paragraph 2, to employees represented by it.
5. Within 10 days of the date of this Decision and
Determination of Dispute , the Mailers' Union and
the Deliverers ' Union shall notify the Regional
Director for Region 29, in writing, whether they will
or will not refrain from forcing or requiring the
Company, by means proscribed by Section
8(b)(4)(D ) of the Act, to assign the work awarded
above in a manner inconsistent with the Board's
determination herein.