Newspaper and Mail Deliverers' Union of New York

National Labor Relations Board - Board Decisions

Mar 18, 1963

141 N.L.R.B. 578 (N.L.R.B. 1963)

578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees engaged as mailers , currently represented by New York
Mailers' Union No. 6, International Typographical Union, AFIr-CIO,
are entitled to operate the buttons which control the Jampol belt,
"jogger," and in -line feeder, during city runs of News Syndicate Co.,
Inc., newspapers.
Newspaper and Mail Deliverers' Union of New York and Vicinity,
Independent and News Syndicate Co., Inc.
New York Mailers' Union No. 6, International Typographical
Union, AFL-CIO and News Syndicate Co., Inc. Cases Nos.
2-CD-233-1 and 2-CD-23.3-2. March 18, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a consolidated proceeding under Section 10(k) of the Act,
following charges filed by News Syndicate Co., Inc., herein called
the Company.' One of the charges is against Newspaper and Mail
Deliverers' Union of New York and Vicinity, Independent, herein
called the Deliverers, and alleges that the Deliverers engaged in illegal
conduct with respect to the Company's employees in order to force a
change in work assignment as between members of the Deliverers
and members of New York Mailers' Union No. 6, International Ty-
pographical Union, AFL-CIO, herein called the Mailers. The other
charge, against the Mailers involves the same work dispute and alleges
that the Mailers engaged in like illegal conduct for the purpose of forc-
ing the Company to assign the work to members of the Mailers instead
of to members of the Deliverers. A duly scheduled hearing was held
before George F. Mclnerny, hearing officer, on March 27 and 29 and
on April 17, 1962. All parties appeared at the hearing and were af-
forded full opportunity to be heard, to examine and cross-examine
witnesses, and 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. Thereafter, the Company and the Deliverers
filed briefs which have been duly considered by the Board.
Pursuant to Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man McCulloch and Members Rodgers and Fanning].
Upon the entire record in this case, the Board makes the following
findings :
1. The Company is the publisher of the New York Daily News,
with publishing operations in New York City; its newspapers are sold
1 A third case (Case No. 2-CD-235) involving the same parties , was consolidated for
hearing by the Regional Director with the two above-captioned cases. However, that
dispute is treated separately in New York Mailers' Union No. 6, International Typo-
graphical Union, AFL-CIO (News Syndicate Co., Inc. ), 141 NLRB No. 49.
141 NLRB No. 50.
NEWSPAPER & MAIL DELIVERERS' UNION OF NEW YORK 579
both within and without the State of New York. The Board's
jurisdiction is not contested, and the Board has previously asserted
jurisdiction over the Company in several cases, including News Syndi-
cate Co., Inc.,124 NLRB 738. Accordingly, we find that the Company
is engaged in commerce within the meaning of the Act and that it will
effectuate the purposes of the Act to assert jurisdiction herein.
2. The Mailers and Deliverers are labor organizations within the
meaning of the Act.
3. The dispute :
A. The work in dispute
In the summer of 1961, the Company installed certain machinery-
designed to mechanize the operation of stacking, tying, and trans-
porting newspapers to delivery trucks as they came off the press. The
operation begins with a Cutler-Hammer stacker which counts and
stacks the papers as they come off the press escalator. The stacked pa-
pers then move along a Jampol (conveyor) belt to a "jogger" device
which straightens the stacks as they move to an in-line feeder ma,
chine. The in-line feeder moves the bundles at predetermined in-
tervals into the wire-tying machine. Coming out of the wire-tying
machine, the tied bundles are taken along conveyor belt #1 toward
the loading platform wall where conveyor belt #2, running parallel
to the wall moves the bundles to certain apertures in the wall where,
they are guided onto the loading platform through the apertures,
by reflectors. At this point, the tied bundles are loaded onto trucks.
This entire operation is automated and is controlled by buttons which
operate all of the aforementioned machines and conveyor belts. The
work in dispute is the operation of the control buttons which regulate
the conveyor belts #1 and #2 on mail runs.2
B. Evidence of illegal conduct
The facts giving rise to the dispute are basically uncontested. On
the evening of January 10, 1962, the Company attempted for the first
time, to operate the stacker on mail run. The Company assigned the
operation of belt #1 to a mailer and belt #2 to a deliverer. However,
the mailer directed to activate belt #1 and the deliverer directed to
activate belt #2 refused to do so, stating that they had been instructed
by their respective unions that they were to operate both belts, and
failing that, not to operate any at all. Thereafter, the mailroom op-
eration was done manually as it had been done in the past. The Com-
2 A run of the Company 's newspapers which is primarily destined for delivery to whole-
salers outside the city of New York is labeled a "mail run ," as opposed to a run of news-
papers destined for delivery to retailers within New York City, which is called a "city
run." The Deliverers claims jurisdiction over the operation of belts #1 and #2 on oity
rims This jurisdiction has not been contested, and the work of operating belts #1
and #2 on city runs is not in dispute.
708-006-64-vol. 141-38
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany filed 8(b) (4) (D) charges, and on February 9, 1962, both unions
were enjoined under Section 10(1) of the Act by the U.S. District
Court for the Southern District of New York.
C. Applicability of the statute
The Mailers takes the position that there is no jurisdictional dispute
in this case, since there has been an adjustment of the dispute within
the meaning of Section 10(k) of the Act.' The adjustment herein,
according to the Mailers consists of two arbitration awards. In an
arbitration award under the Mailers contract, Peter Seitz, impartial
chairman, awarded the disputed work to the Mailers. In a second
arbitration under the Deliverers contract, Impartial Chairman George
Moskowitz, awarded the disputed work to the Deliverers. The Mailers
argues that these two awards, even though inconsistent, constitute a
"voluntary adjustment" of the disputed work under Section 10(k)
of the Act. We do not agree. These arbitrations do not constitute an
adjustment of the dispute within the meaning of Section 10(k) for
the very basic reason that the Mailers arbitration would be binding
only upon the Mailers and the Company, and the Deliverers arbitration
likewise would be binding only upon the Deliverers and the Company.
The voluntary adjustment must bind both disputing Unions as well
as the Employer to come within the meaning of voluntary settlement
as set out in Section 10 (k) .°
On the basis of the entire record, we 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
under Section 10 (k) of the Act.
D. Contentions of the parties
The Deliverers' Union contends that it is entitled to the disputed
work as a matter of custom and tradition since it had performed the
disputed work when the operation was done manually. Moreover,
the Deliverers maintains that its contract with the Company gives it
jurisdiction over the disputed work and that this jurisdiction was
affirmed in the Moskowitz arbitration which awarded the work to it.
Likewise, the Mailers argues that custom and tradition, their own
S Section 10 ( k) reads: "Whenever it is charged that any person has engaged in an un-
fair labor practice within the meaning of paragraph 4(D) of section 8(b), the Board is
empowered and directed to hear and determine the dispute out of which such unfair labor
practice shall have arisen, unless, within ten days after notice that such charge has been
filed , the parties to such dispute submit to the Board satisfactory evidence that they
have adjusted , or agreed upon methods for the voluntary adjustment of, the dispute.
Upon compliance by the parties to the dispute with the decision of the Board or upon
such voluntary adjustment of the dispute , such charge shall be dismissed."
4 New York Mailers' Union No. 6, International Typographical Union , AFL-CIO (The
New York Times Company ), 137 NLRB 665.
NEWSPAPER & MAIL DELIVERERS' UNION OF NEW YORK 581
contract with the Company, and the Seitz arbitration entitles it to
the disputed work.
The Company has taken the position that belt #1 is within the
work jurisdiction of the Mailers and belt #2 is properly the work of
the Deliverers. The basis of this allocation is that these assignments
conform generally to the work division as it existed prior to the advent
of the stacker, when the work was being performed manually.
E. Merits of the dispute
As noted above , the disputed work is the operation of the control
buttons regulating conveyor belts #1 and #2 on mail runs. It is use-
ful to examine the mailroom operation on a mail run prior to the in-
troduction of the stacker and its appurtenant equipment . The opera-
tion of stacking , tying, and moving newspapers was done by hand
with the aid of rolling tables. The papers were sent down to the press-
room by conveyor where they were stacked by mailers , and pushed
along a table , by a mailer , to a wire-tying machine. At this point, on
a mail run , a mailer operated the wire-tying machine. After bundles
were tied , a mailer placed them on a rolling table, pushed it ,a short
distance toward the doors leading to the loading platform , at which
point a deliverer took it through the doors leading to the loading
platform where the bundles were loaded into trucks for delivery.
With the introduction of the stacker and its button controlled equip-
ment, the Company attempted to assign the work in a manner which
would most closely parallel the operation as it was done manually.
The Company assigned the operation of belt #1 to a mailer since
that belt performs the same basic function performed by the mailer
who- took the bundles from the wire-tying machine on rolling tables
to--the point at which the table was turned over to a deliverer for
movement to the loading platform. Similarly , the Company assigned
the operation of belt #2 to a deliverer, since that belt now performs
the function previously performed by the deliverer who took the roll-
ing table from the mailer and moved it to the loading platform.
Both Unions , however , rejected the Company allocation insofar as
both assert jurisdiction over both disputed belts under their respective
contracts with the Company. The Mailers registers its claim under
section 2(b) which states, "Both parties to this contract wish to pre-
serve during its lifetime the historical jurisdiction of New York
Mailers Union No. Six in the plants of the Publishers signatory hereto.
It is agreed therefore , that any person employed to operate new ma-
chinery designed to supplant or substitute for machinery or work now
exclusively under the jurisdiction of the Union shall be a journeyman
or apprentice within the bargaining unit represented by this Union."
The Deliverers on the other hand , asserts that section 2-C of its con-
tract with the Company entitles that Union to the disputed work.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 2-C states, "Whenever new mechanical devices are introduced
to perform or aid in the performances of any of the operations included
in the bargaining unit, such devices shall be operated exclusively by
employees in the bargaining unit."
In our opinion, the effect of these two contract provisions, do not
support the jurisdictional claim of either union to both belts. The,
gravamen of both contract provisions is the maintenance of the status
quo whenever manual operations within their respective jurisdictions.
became automated. The Company appears to have attempted to.
follow the sense of these provisions when it made the work assignments.
disputed herein, and the Company's assignment with respect to belt
#1 and belt #2 is a practical and reasonable solution to the work
dispute herein within the meaning of both contracts since the current
work assignments closely parallel the work assignments as they existed
when the operation was manual.'
From all the foregoing, including the contract provisions them-
selves, the assignment made by the Company under these contracts,
and particularly the past practice wherein mailers manually per-
formed the operation now performed by belt #1 and deliverers per-
formed the operation now performed by belt #2, we shall determine
the dispute herein by assigning the operation of belt #1 to mailers
and the operation of belt #2 to deliverers with respect to mail runs,
of the Company's newspapers.
Our present determination is limited to the particular controversy
which gave rise to these proceedings. In making this determination,
we are assigning the disputed work to mailers who are represented
by the Mailers' Union and deliverers who are represented by the,
Deliverers' Union, and not to those unions or to their members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings of fact and upon the entire,
record in this case, the Board makes the following determination of
dispute pursuant to Section 10 (k) of the Act :
1. Employees engaged as mailers, currently represented by New
York Mailers' Union No. 6, International Typographical Union,
AFL-CIO, are entitled to perform the work of operating belt #1
during mail runs of News Syndicate Co., Inc. newspapers. Employees
engaged as deliverers, currently represented by Newspaper and Mail
Deliverers' Union of New York and Vicinity, Independent, are en-
titled to perform the work of operating belt #2 during mail runs of
News Syndicate Co., Inc., newspapers.
6 See Local 4, International Brotherhood of Electrical Workers , AFL-CIO ( The Pulitzer
Publishing Company), 138 NLRB 335 ; and International Association of Machinists, Local
Lodge 681, District Lodge No. 27, AFL-CIO (American Radiator 6 Standard Sanitary
Corporation ), 137 NLRB 1524.
CHECKER CAB COMPANY AND ITS MEMBERS 583
2. New York Mailers' Union No. 6, International Typographical
Union, AFL-CIO, is not entitled by means proscribed by Section
8 (b) (4) (D) to force or require News Syndicate Co., Inc., to assign the
operation of belt #2, during mail runs, to employees engaged as
mailers who are currently represented by New York Mailers' Union
No. 6, International Typographical Union, AFL-CIO. Newspaper
and Mail Deliverers' Union of New York and Vicinity is not entitled,
by means proscribed by Section 8 (b) (4) (D), to force or require News
Syndicate Co., Inc., to assign the operation of belt #1, during mail
runs, to employees engaged as deliverers who are currently represented
by Newspaper and Mail Deliverers' Union of New York and Vicinity,
Independent.
3. Within 10 days of the date of this Decision and Determination
of Dispute, Newspaper and Mail Deliverers' Union of New York and
Vicinity, Independent, and New York Mailers' Union No. 6, Interna-
tional Typographical Union, AFL-CIO, shall notify the Regional
Director for the Second Region in writing, whether or not they will
refrain from forcing or requiring News Syndicate Co., Inc., by means
proscribed. by Section 8(b) (4) (D), to assign the work in dispute
in a manner inconsistent with the provisions of (1) above.
Checker Cab Company and its Members and Local 10, Trans-
portation Services and Allied Workers, Seafarers Interna.
tional Union of North America, AFL-CIO, Petitioner. Case
No. 7-RC-5346. March 18, 1963
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Joseph Kulkis, hearing officer.
The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.'
Upon the entire record in this case, the Board finds:
1. Checker Cab Company is a nonprofit membership corporation,
whose members own and operate taxicabs in the city of Detroit. The
principal corporate purposes of Checker, as stated in its charter,
are to provide the city of Detroit with an efficient and systematic taxi-
cab service, to enable its member taxicab owners to associate for mutual
benefit, and to afford a means by which persons engaged in rendering
cab service may improve operating procedures and practices and main-
tain suitability of equipment.
3 The request for oral argument made by the 286 members of Checker is hereby denied,
Since the record, including the briefs , adequately sets forth the issues and the positions
of the parties.
141 NLRB No. 64.