Newspaper and Mail Deliverers' Union

National Labor Relations Board - Board Decisions

Nov 30, 1970

186 N.L.R.B. 981 (N.L.R.B. 1970)

NEWSPAPER AND MAIL DELIVERERS' UNION
Newspaper and Mail Deliverers ' Union of New York
and Vicinity and Dow Jones and Company , Inc. and
I)onson's Express , Inc. and Newark Mailers' Local
11, International Typographical Union , AFL-CIO.
Case 22-CD-167
November 30, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
This is a proceeding pursuant to Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed on May 18, 1970, by Dow Jones and
Company, Inc., herein called the Employer, alleging
that Newspaper and Mail Deliverers' Union of New
York and Vicinity, herein called the Deliverers, had
violated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing or
requiring the Employer to assign certain work in
dispute to employees represented by the Deliverers,
rather than to employees represented by Newark
Mailers' Local 11, International Typographical Un-
ion, AFL-CIO, herein called the Mailers. Pursuant to
notice, a hearing was held before Hearing Officer
Gerald Kobell on July 20, 21, and 22, 1970. All parties
appeared at the hearing and were afforded full
opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues. The rulings of the Hearing Officer made
at the hearing are free from prejudicial error and are
hereby affirmed. The Employer and the Deliverers
have filed briefs which have been duly considered.
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 case to a three-member
panel.
Upon the entire record in this case, the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYER
Dow Jones and Company, Inc., is engaged, inter
aha, in the publication of the Wall Street Journal, a
financial newspaper. It has gross annual revenue in
excess of $1 million, holds membership in interstate
news services, and advertises nationally sold prod-
ucts.
We find that the Employer is engaged in commerce
within the meaning of the Act and that it will
effectuate the policies of the Act to assert junsdiction
herein.
ii. THE LABOR ORGANIZATIONS INVOLVED
981
The parties stipulated, and we find, that the Mailers
and the Deliverers are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
This proceeding arises out of a dispute concerning
work assignments made by the Employer at a new
publishing plant in South Brunswick, New Jersey,
with regard to: (1) operating automatic wire-tying
machines for newspapers destined for delivery to
wholesalers and newsstands, but not when destined
for mail delivery; (2) all work in the mailroom once
copies either for newsstand or mail subscription leave
the tying machines and pass on conveyors to the
loading platform; and (3) the delivery of newspapers
from the plant, including deliveries to the United
States Post Office.
A. Background
Until about the middle of 1963, the Employer
operated a plant in New York City for the printing of
the Wall Street Journal. During the time it published
in that city, the Employer divided jurisdiction in its
mailroom between employees represented by the
Mailers and the Deliverers, respectively. For example,
if newspapers were destined for bulk delivery to the
post office, mailers handtied the bundles with twine;
if the newspapers were intended for delivery to
wholesale or retail outlets, deliverers did the tying
work. Mailers wrapped and addressed copies intend-
ed for individual subscribers, placed them in a bag,
and then handed over the bag to deliverers who
tightened a rope on the bag and placed the bag on a
chute leading to the loading platform. From the
loading dock deliverers transported the bags to
designated terminals, depots, or post offices.
When the Employer discontinued its printing plant
in New York City, it received copies of the Wall Street
Journal from its Chicopee, Massachusetts, plant for
distribution in the New York area. As a result of the
new situation, the Employer and Mailers entered into
a collective-bargaining contract in 1963 which con-
tains a clause providing as follows:
It is agreed that with the cessation of printing in
the publisher's New York, N.Y., plant on or about
July 1, 1963, the jurisdiction of the Union shall be
limited to the transfer and delivery of papers to
wholesalers or news companies which are intended
for newsstand sales distribution within the geo-
graphic limits of the Union's territorial coverage as
set forth in Section I for deliveries to buildings in
Manhattan. Such transfers and deliveries shall be
made as directed by the publisher from a point or
186 NLRB No. 144
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
points within the metropolitan area to selected
destinations. The Union further agrees it has no
claim to the handling of subscription copies of the
publisher's publications entered as mail through
the United States Post Office.
This clause has been continued in all subsequent
collective-bargaining contracts between the same two
parties, including the most recent contract which
expired prior to the hearing herein.
In accordance with this contract provision, newspa-
pers intended for newsstand distribution in the New
York area are transported by contract carrier from the
Chicopee plant to various drop points in New York
and environs, where they are picked up by employees
of the Employer represented by the Deliverers and
transported to wholesalers for further distribution.
Early in 1970, the Employer opened a new regional
publishing plant in South Brunswick, New Jersey,
which was intended initially to supply newspapers for
mail distribution within the greater New York and
Philadelphia areas. As part of the new plant, the
Employer installed a mailroom which contains
stacking machines which automatically arrange pa-
pers in piles, tying machines which encircle stacks of
paper with wire by an automatic process, and
conveyors which move the papers from the presses to
the various machines and ultimately to the loading
platform. To man the mailroom the Employer hired
nine employees whom it trained to operate and
maintain the mailroom equipment.
In order to make mail deliveries, the Employer
entered into an arrangement with the United States
Post Office for delivery under a procedure known as
an "honorary star route." Under this arrangement,
the Post Office secures bids from private trucking
companies and selects the lowest responsible bidder.
This bidder then contracts with the Post Office patron
for the receipt of newspapers at the patron's place of
business and delivery to appropriate post offices. In
accordance with the foregoing, the Employer con-
tracted with Donson's Express, Inc., to operate the
required star routes and assigned the mail delivery
work to the approximately five drivers employed by
Donson's. These men began their work on May 17,
1970.i
About May 12, 1970, the Employer received a
demand from the Mailers for recognition as bargain-
ing representative of the mailroom employees. Fol-
lowing a check of the authorization cards which
showed that the Mailers represented a majority of the
mailroom employees, the Employer extended recogni-
tion to that organization.
On May 15, 1970, Carl Levy, president of the
1 On June 29 , 1970, the Employer entered into a similar arrangement
with another trucker , Puskus & Reed
2 The Deliverers contention that there is no jurisdictional dispute
Deliverers, met with officials of the Employer and
demanded that members of his union perform all
work at the South Brunswick plant which they had
formerly performed at the New York City plant. Levy
threatened a strike unless his demand was met. The
Employer refused the demand at another meeting
held on May 17. The Deliverers then established a
picket line at the South Brunswick plant and its
members employed to deliver the newspapers in New
York City did not report for duty at their customary
places of work. The picketing and work stoppage
ended on May 27, after a petition seeking injunctive
relief pursuant to Section 10(1) of the Act was filed in
the United States District Court. The parties agreed to
preserve the status quo pending resolution of the issues
in the present proceeding, whereupon the petition for
an injunction was held in abeyance.
B. Contentions of the Parties
The Employer contends that its assignment of work
in the mailroom to employees represented by the
Mailers and of the delivery work to employees
employed by Donson 's and Puskus & Reed are in
accord with established Board criteria and should be
affirmed. The Mailers agrees with the Employer's
contention that the work in the mailroom should be
assigned to its members. The Deliverers contends that
the dispute with the Employer is not jurisdictional,
and, if it is, the work in dispute should be assigned to
employees whom it represents by reason of long-
established practice under a collective -bargaining
relationship.
C. Applicability of the Statute
The charges herein allege a violation of Section
8(b)(4)(D) of the Act. The record shows that on or
about May 17, 1970, the Deliverers picketed the South
Brunswick plant with an object of forcing the
assignment of certain mailroom and delivery work to
employees whom it represents. We therefore find that
there is 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.2
D. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after giving
due consideration to all relevant factors. The Board
has held that its determination in jurisdictional
dispute cases is an act of judgment based upon
because the Employer is not a neutral and its difficulty if self-created is
without merit
NEWSPAPER AND MAIL DELIVERERS' UNION
common sense and experience in balancing various
factors.3
The South Brunswick plant is a new, highly
automated plant. The Deliverers does not now nor
has it ever represented employees performing the
disputed work at this plant. Its claim to such work is
based principally on the practice in the New York
plant under long-established collective-bargaining
agreements prior to the plant's closing in 1963. This
stale practice and bargaining history at another and
abandoned plant are not sufficient to outweigh other
factors favoring assignment of the disputed work to
the employees presently performing such work at the
South Brunswick plant. These are:
(1) The present employees are as competent as
members of the Deliverers in performing the mail-
room and delivery work; in fact, no special skill is
required to do such work.
(2) It is more rational, efficient, and economical to
have one set of employees perform all the mailroom
work, rather than divide it up among employees
represented by two different unions.
(3) The general practice among newspapers in the
State of New Jersey is for one labor organization to
have jurisdiction of all employees in the mailroom; in
most cases, the Mailers represents such employees.
(4) The assignment of delivery work to employees of
Donson's Express and Puskus & Reed relates only to
delivery of newspapers to the United States Post
Office and not to delivery of such papers to wholesal-
ers or newsstand distributors. Since 1963, the collec-
tive-bargaining contracts between the Deliverers and
the Employer have contained a specific disclaimer by
that union of any claim "to the handling of subscrip-
tion copies of the publisher's publications entered as
mail through the United States Post Office." Thus, the
Deliverers has neither a current contract claim to the
delivery work nor a recent history of representing
employees trucking newspaper copies to the Post
Office.
Since the preponderant factors favor the Employ-
er's present assignment of the disputed work, we shall
award such work in accordance with that assignment.
983
Our present determination is limited to the particular
controversy which gave rise to this proceeding. In
making this determination, we are assigning the
disputed work to employees in the mailroom who are
represented by the Mailers, and to the employees of
Donson's and Puskus & Reed engaged in delivery of
newspapers to the United States Post Office whether
or not represented by a labor organization, and not to
the Mailers or to any other labor organizations.
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:
1. Employees employed as mailers, currently
represented by Newark Mailers' Local 11, Interna-
tional Typographical Union, AFL-CIO, are entitled
to perform the work of operating, maintaining, and
servicing the automatic wire-tying machines and
related conveyor equipment in the mailroom of the
Employer's South Brunswick, New Jersey, plant.
2. Employees employed by Donson's Express and
by Puskus & Reed are entitled to perform the work of
transporting the papers from the Employer's South
Brunswick, New Jersey, plant to the United States
Post Office.
3. Newspaper and Mail Deliverers' Union of New
York and Vicinity is not entitled, by means proscribed
by Section 8(b)(4)(D) of the Act, to force or require
Dow Jones and Company, Inc., to assign the work
awarded in paragraphs I and 2 to employees
represented by the Deliverers.
4. Within 10 days of the date of this Decision and
Determination of Dispute, the Deliverers shall notify
the Regional Director for Region 22, in writing,
whether it will refrain from forcing or requiring the
Employer, 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.
3 International Association of Machinists, Lodge No 1743 (J A Jones
Construction Company), 135 NLRB 1402, 1411