Mailers' Union 79 (Oxmoor Press)

National Labor Relations Board - Board Decisions

Sep 22, 1977

232 N.L.R.B. 279 (N.L.R.B. 1977)

BIRMINGHAM MAILERS' UNION NO. 79
Birmingham Mailers' Union No. 79 a/w International
Mailers Union and Oxmoor Press, Inc. and
Graphic Arts International Union, Local 540
Graphic Arts International Union, Local 540 and
Oxmoor Press, Inc. and Birmingham Mailers'
Union No. 79 a/w International Mailers Union.
Cases 10-CD-265 and 10-CD-266
September 22, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Oxmoor Press, Inc., herein called
the Employer, alleging that Birmingham Mailers'
Union No. 79 a/w International Mailers Union,
herein called the Mailers, and Graphic Arts Interna-
tional Union, Local 540, hereinafter called the
GAIU, have violated Section 8(b)(4)(D) of the Act.
Pursuant to notice, a hearing was held before
Hearing Officer Michael B. Frost on June 10, 1977.
All parties appeared and were afforded full opportu-
nity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the
issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer, an Alabama corporation with its principal
place of business in Birmingham, Alabama, is
engaged in the business of commercial printing.
During the past year, the Employer shipped and sold
goods having a value of $50,000 to customers located
outside the State. The parties also stipulated, and we
find, that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and it will effectuate the purposes of the Act to assert
jurisdiction herein.
232 NLRB No. 55
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the labor
organizations involved are labor organizations within
the meaning of Section 2(5) of the Act.
II1. THE DISPUTE
A. The Background Facts
The Employer employs approximately 167 employ-
ees in its commercial printing business. Its bindery
room employees are represented by the Graphic Arts
International Union, Local 540; its mailroom em-
ployees by the Birmingham Mailers Union No. 79.
The Employer's current operation calls for various
component parts of a printed product to be brought
into its bindery room where they are trimmed and
stitched into a finished product by a machine called a
McCain trimmer (hereinafter called stitcher). The
finished product is then placed on skids to be
transported to the mailroom. In the mailroom the
product is run through either a Kirk-Rudy or a
Cheshire mailing machine which cuts and affixes
address labels. The product is then sorted by zip code
and tied into bundles for the post office.
The mailing process requires four employees: one
to feed the address labels into the machine, one to
sort the addressed products, one to tie the products
into bundles, and one to sack the bundles for the post
office. These functions are identical with respect to
either the Kirk-Rudy mailing machine or the
Cheshire mailer and have been performed only by
mailroom employees represented by the Mailers. The
McCain stitcher, located in the bindery room, has
only been operated by employees represented by the
GAIU. Bindery room employees also stack and load
the stitched product for transport into the mailroom.
The Employer now desires to implement an "in-
line" operation involving, on a part-time basis, the
physical connection of the Kirk-Rudy machine to the
McCain stitcher in the bindery room. In-line opera-
tion eliminates the need to stack and transport the
finished products into the mailroom, as well as the
need to feed them into the mailing machines since a
hopper system would convey the products directly
from the McCain stitcher into the Kirk-Rudy
machine.
The Employer plans to continue to operate the
Kirk-Rudy machine separately for some jobs in its
present mailroom location, where it will continue to
be operated by mailroom employees. Only the
operation of the Kirk-Rudy mailing machine while
in-line in the bindery room is in dispute herein.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Work in Dispute
The work in dispute involves the operation of a
Kirk-Rudy mailing machine in a sequential in-line
operation with the McCain stitcher in the Oxmoor
Press, Inc., bindery in Birmingham, Alabama.
C. The Contentions of the Parties
The Employer contends that it has no preference as
to how the disputed work is assigned, but that it
would be more economical for employees represent-
ed by the Mailers to continue operating the Kirk-
Rudy machine since they are already trained; and
training requires anywhere from 6 months to a year.
Both Unions contend that the work should be
assigned to employees they represent. The Mailers
asserts its claim to the work based on its collective-
bargaining agreement with the Employer, company
and industry practice, the skills needed to perform
the disputed work, potential job loss, and the
Employer's alleged preference for assigning the work
to trained employees.
The GAIU argues that employees represented by it
should be assigned the disputed work to avoid
fragmenting the Employer's work force and to follow
industry practice. It also argues that it would be more
efficient for its members to operate the Kirk-Rudy
machine when it is in-line because it would facilitate
repairs if employees operating both machines were
represented by the same union.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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
and that the parties have not agreed upon a method
for the voluntary adjustment of the dispute.
In March 1977, the Employer informed the GAIU
that it intended to move the Kirk-Rudy mailing
machine into its bindery for in-line operation with
the McCain stitcher. The Employer further suggested
that the machine should continue to be operated by
employees represented by the Mailers. Thereupon
the GAIU representatives informed the Employer
that, if the work were assigned according to the
Employer's proposal, its members would refuse to
operate the companion stitching machine and would
engage in a work stoppage. The Employer, in turn,
informed representatives of the Mailers of the
GAIU's response to its proposed assignment and the
Mailers replied that, if the work were not assigned to
N A.L.R.B v. Radio & Television Broadcast Engineers Union, Lcoal 1212,
International Brotherhood of Elerrical Workers. AFI (O10 (Colutnbia
Broadcasting Svsten m, 364 U.S. 573 (1961 ).
employees represented by it, "it would take action up
to and including a strike."
On the basis of the entire record, we conclude that
there is reasonable cause to believe that violations of
Section 8(b)(4)(D) have occurred and that there
exists no agreed-upon method for the voluntary
adjustment of the dispute within the meaning of
Section 10(k) of the Act. Accordingly, we find that
this dispute is properly before the Board for
determination.
E. 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 factors.' The Board has
held that its determination in a jurisdictional dispute
is an act of judgment based on commonsense and
experience reached by balancing those factors
involved in a particular case. 2
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
Neither Union's current collective-bargaining
agreement with the Employer specifically mentions
the in-line operation of the Kirk-Rudy mailing
machine. The GAIU agreement, in relevant part,
defines the jurisdiction of the GAIU employees as:
. . . including all of the Company's Bindery
Room work heretofore recognized by the Compa-
ny and the Union ... and includes such work as:
folding, jogging, tipping, stacking, and feeding all
signatures of magazines after their delivery to the
Bindery . . . removing bound copies of maga-
zines from the trimmer and stacking for delivery
to the mailroom ....
The stacking of magazines for delivery to the
mailroom will be eliminated by the in-line operation
of the mailing machine and the stitcher.
The Mailers contract provides:
This Agreement and the jurisdiction of the Union
covers employees of the Company who perform
work heretofore recognized by the Company and
the Union as Mailing Room work and includes
such work as addressing . . . tagging, stamping,
labeling, bundling and wrapping ... sorting, ....
tying, sacking . . . and dispatching of papers,
envelopes and magazines whether done by hand
or machine .... [Emphasis supplied.]
2 International Associatrion of Machinists, Lodge ,o. 1743, A FL CIO (J.
A. Jones Construction Companvy, 135 NLRB 1402 (1962).
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BIRMINGHAM MAILERS' UNION NO. 79
Although the jurisdictional clause of the GAIU
contract appears to cover all work performed in the
bindery room, it speaks only of work already
recognized as bindery room work by the Employer
and the Union. On the other hand, the Mailers
agreement specifically provides that addressing and
labeling, whether by machine or by hand, will be
performed by mailers. Since these functions are
performed by the Kirk-Rudy machine whether it is
located in the mailroom or in the bindery, the mailers
have the stronger contractual claim to the disputed
work. Accordingly, we find that the agreements favor
assignment of the work in dispute to the employees
represented by the Mailers.
2. Company and industry practice
The Employer began using the Kirk-Rudy machine
in 1974, and only mailers have operated it or any
similar mailing machine.
With respect to industry practice, employee Wen-
dell Barrett testified that employees represented by
the Mailers operated a Kirk-Rudy mailing machine
in-line with a stitcher machine (operated by employ-
ees represented by the GAIU) at a printing company
located in Des Moines, Iowa. A number of the
Employer's competitors have mailing machines in-
line with stitchers, operated by members of the
GAIU. However, the GAIU members' operation of
the mailing machines is mostly at locations where the
GAIU represents both bindery room and mailroom
employees.
The limited evidence of industry practice is too
meager to demonstrate a pattern of assignment of the
disputed work to employees represented by either
Union. We do find that the Employer's current
assignment of the Kirk-Rudy machine to mailers
favors their claim to the work in dispute.
3. Relative skills
The disputed work involves the operation of the
Kirk-Rudy mailing machine. The record shows that
employees represented by the Mailers have operated
the machine since 1974 and possess the requisite
skills to do so. The Employer's plant personnel
manager, Baldone, testified that the skills involved
take 6 months to a year to learn. None of the present
bindery room employees, represented by the GAIU,
presently possesses the required skills. Accordingly,
we find that the mailers' skills favor an assignment of
the work to them.
4. Economy and efficiency
Under the Employer's present system its products
are stitched together in the bindery room by a
McCain stitcher, then stacked onto skids, and
transported to the mailroom where they are fed into
the Kirk-Rudy mailing machine. Plant Manager
Siegert testified that the proposed in-line operation of
the Kirk-Rudy machine with the McCain stitcher
would be more efficient than the present system
because it would permit the finished products to be
fed directly into the mailing machine, thus eliminat-
ing the need for stacking, transporting into the
mailroom, and feeding the product manually into the
mailing machine. Despite the increased efficiency of
the in-line system, the Employer will continue to
operate the Kirk-Rudy machine separately in the
mailroom for some jobs.
Neither Union contests the greater efficiency of the
in-line system. The Mailers, however, contends that
it would be more efficient for employees represented
by it to operate the machine in both the bindery and
the mailroom since they are experienced in operating
the machine and the training period is 6 months to a
year. The GAIU argues that it would be more
efficient for employees it represents to operate the
Kirk-Rudy machine when it is used in the bindery in
order to facilitate repairs in the event of a break-
down.
In view of the Employer's intention to continue
operating the Kirk-Rudy machine separately in the
mailroom for some jobs, as well as using it in-line in
the bindery room, we find that efficiency favors
assignment to the employees represented by the
Mailers, who are already operating the machine in
the mailroom.
5. Job loss
According to Employer's plant superintendent.
Siegert, the in-line operation of the Kirk-Rudy
machine will result in the elimination of the jobs of
those employees who stack stitched products and
transport them into the mailroom and those who feed
the stitched products into the mailing. Despite the
projected job elimination, however, Siegert testified
that none of the affected employees would be laid off
if the disputed work is assigned as the Employer has
proposed to the employees represented by the
Mailers. Siegert could not predict the job loss
consequences of an assignment to the employees
represented by the GAIU.
Wendell Barrett, a mailroom employee, testified
that mailroom employees would initially lose 35
percent of their work if the in-line operation of the
Kirk-Rudy machine were assigned to GAIU mem-
bers. Bobby Loyed, a bindery room employee,
testified that it was his understanding that the
Employer planned to switch about 90 to 95 percent
of the remaining work from the Cheshire mailing
281
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machine in the mailroom to the Kirk-Rudy in-line
operation in the bindery room. Should that happen,
almost all of the address labeling now being done in
the mailroom would be performed in the bindery
room.
There is no evidence that employees represented by
the GAIU will lose their jobs if the disputed work is
not awarded to them. In contrast, much of the work
performed in the mailroom on mailing machines will
eventually be done in-line in the bindery room with a
job loss for mailroom employees should they not be
assigned the disputed work. We conclude that the
factor of job loss favors an assignment of the
disputed work to employees represented by the
Mailers.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors, we conclude
that employees who are represented by the Mailers
are entitled to perform the work in dispute. We reach
this conclusion relying on the collective-bargaining
agreements, company practice, relative skills, econo-
my and efficiency of operation, and job loss factors,
all of which favor this assignment. In making this
determination, we are awarding the work in question
to employees who are represented by the Mailers, but
not to that Union or its members. The present
determination is limited to the particular controversy
which gave rise to this proceeding.
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
makes the following Determination of Dispute:
1. Employees of Oxmoor Press, Inc., who are
represented by Birmingham Mailers' Union No. 79
a/w International Mailers Union, are entitled to
perform the in-line operation of the Kirk-Rudy
mailing machine at the Birmingham, Alabama, plant
of the Employer.
2. Graphic Arts International Union, Local 540,
is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require Oxmoor
Press, Inc., to assign the disputed work to employees
represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Graphic Arts Inter-
national Union, Local 540, shall notify the Regional
Director for Region 10, in writing, whether or not it
will refrain from forcing or requiring the Employer,
by means proscribed by Section 8(b)(4)(D) of the
Act, to assign the disputed work in a manner
inconsistent with the above determination.
282