New York Mailers' Union No. 6

National Labor Relations Board - Board Decisions

Sep 26, 1975

220 N.L.R.B. 794 (N.L.R.B. 1975)

794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York Mailers ' Union No. 6 and The New York
Times Company. Case 2-CD-493-1
Newspaper & Mail Deliverers' Union of New York &
Vicinity and The New York Times Company. Case
2-CD-493-2
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Mailers
and Deliverers are labor organizations within the
meaning of Section 2 (5) of the Act.
September 26, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed on April 25, 1975, by The New York
Times Company (herein referred to as the Times or
Employer) alleging in Case 2-CD-493-1 that New
York Mailers' Union No. 6 (herein referred to as
Mailers) and in Case 2-CD-493-2 that Newspaper &
Mail Deliverers' Union of New York & Vicinity
(herein referred to as Deliverers) had violated Sec-
tion 8(b)(4)(D) of the Act. A hearing was held pur-
suant to notice at New York, New York, on May 28,
1975, before Hearing Officer Elbert F. Tellem. The
Times, Mailers, and Deliverers appeared at the hear-
ing and were all afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. None of
the parties have filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are here-
by affirmed.
Upon the basis of the entire record in this case, the
Board makes the following findings:
1. THE BUSINESS OF THE COMPANY
The parties stipulated, and we find, that the Times,
with an office and principal place of business located
at 229 West 43d Street, Borough of Manhattan, City
and State of New York, is engaged in the business of
publishing The New York Times, a morning daily
and Sunday newspaper of general circulation.'
' During the past year the Times derived gross revenues in excess of
$500,000 from its operations . During the same period , its purchases of news-
print and ink which were shipped to it in interstate commerce directly from
outside the State of New York exceeded $50,000 , and its gross revenues
received from shipments of its newspapers to customers located outside the
State of New York exceeded $50,000.
III. THE DISPUTE
A. Background and Facts of the Dispute
A portion of the Times' circulation is made up of
mail subscriptions wherein daily newspapers are in-
dividually labeled with subscribers' names and ad-
dresses and sent to them through the U.S. Postal Ser-
vice. Prior to late April 1975, these newspapers were
made into bundles according to Post Office ZIP
codes and tied with rope by mailers. The bundles
were then passed across a table to deliverers, who
placed them in mail sacks and attached address la-
bels. The mail sacks were then sent to a truck, load-
ed, and delivered to the Post Office.
In April 1975, the Times decided to install new
tying machines and eliminate the use of mail sacks
in this operation. Pursuant to its collective-bargain-
ing agreement with the Deliverers, the Times sought
arbitration with respect to its intention to discontinue
using mail sacks. The impartial chairman's opinion
and award permitted discontinuance of the use of
mail sacks and awarded the work of placing the
wrapper and operating the tying machine in pro-
cessing out-of-town mail subscriptions to the Deliv-
erers.
On April 23, 1975, the Times assigned the work of
placing a wrapper on bundles of newspapers and op-
erating a tying machine for the processing of out-of-
town subscriptions to its employees who are mem-
bers of or represented by the Mailers.
B. The Work in Dispute
While the charge in this case, as well as portions of
a related civil case stipulated to by the parties and
the impartial chairman's award, refers to the disput-
ed work as involving out-of-town subscriptions, the
record shows that 10 percent of the Times' daily mail
subscriptions are sent to subscribers within the city
of New York. At the hearing representatives of the
Mailers and Deliverers claimed this work.
Inasmuch as the record shows that processing sub-
scriptions for New York City subscribers involves the
same operations as processing out-of-town subscrip-
tions and is claimed by both the Deliverers and Mail-
ers, we shall include processing New York City sub-
scriptions in our definition of the work in dispute.
We find, therefore, that the disputed work is the
220 NLRB No. 118
NEW YORK MAILERS' UNION NO. 6
work involved in placing wrappers on bundles of
newspapers and operating tying machines for the
processing of mail subscriptions.
C. The Contentions of the Parties
The Times and the Mailers contend that the dis-
puted work should be awarded to employees repre-
sented by the Mailers in accordance with the
Employer' s assignment and consideration of such
factors as efficiency, economy, and preservation of
historical lines of jurisdiction.
The Deliverers argues that the Board should award
the disputed work to employees whom it represents,
in conformity with the above-mentioned arbitration
award and its collective-bargaining agreement with
the Times and because the disputed work replaces
work previously performed by deliverers. The Deliv-
erers also contends that the prior Board decision in-
volving processing mail subscriptions for the Sunday
Times 2 is limited to the particular dispute encom-
passed in that proceeding and should not affect the
decision herein.
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.
The parties stipulated, and we find, that on April
17, 1975, Mailers Business Agent Edward Mitchell
warned the Times that it would strike and engage in
a work stoppage unless the work in dispute was as-
signed to employees represented by Mailers. On
April 23, 1975, Deliverers Business Agent Charles
Panattiere threatened the Times with similar action
unless the disputed work was assigned to employees
represented by Deliverers. The Times, on April 23,
1975, assigned the disputed work to its employees
represented by the Mailers.
Accordingly, we find 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.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
taking into account the evidence supporting the
claims of the parties and balancing all relevant fac-
tors.'
2 New York Mailers' Union Number Six, International Typographical Union
AFL-CIO, 171 NLRB 834 (1968).
795
We shall set forth below those factors which we
find relevant in determining the dispute herein.
1. Collective-bargaining agreements , arbitration
awards , and prior Board decisions
Consideration of these factors does not favor an
award of the disputed work to either mailers or deliv-
erers. Thus, although the Deliverers contract would
tend to favor awarding the work to deliverers, the
Mailers collective-bargaining agreement also pur-
ports to cover the disputed work. The impartial
chairman does give the disputed work to deliverers in
the arbitration award, but the Mailers was not a par-
ty to that proceeding and all relevant factors under
Section 10(k) were not considered. Finally, the lan-
guage of the prior Board decision, referred to above,
does limit the award therein to the circumstances of
that particular dispute and therefore is not determi-
native of the instant case.
2. Employer's assignment, economy, and efficiency
John Murphy, production director at the Times,
testified that the Employer's purpose in eliminating
the use of mail sacks was to increase the efficiency of
processing mail subscriptions by increasing the load-
ing capacity of the trucks that deliver the newspa-
pers to the Post Office. He also testified that in mak-
ing the assignment to mailers the Employer took into
consideration potential savings in personnel costs, in-
asmuch as the new mechanized system of tying and
wrapping will eliminate manual handling of the
newspaper bundles between the mailroom operations
and the loading of the trucks. Accordingly, we find
this factor favors awarding the disputed work to em-
ployees represented by the Mailers.
3. Past practice
The parties stipulated that area and industry prac-
tice are irrelevant to this dispute. With respect to the
Employer's past practice, the record shows that em-
ployees represented by the Mailers have traditionally
done the addressing and tying into bundles of the
newspaper mail subscriptions destined for both out-
of-town and New York City subscribers. The Deliv-
erers, on the other hand, points out that in the past
employees which it represents have done the work of
placing destination labels on the mail sacks, which
3 N L R B v. Radio and Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad-
casting System], 364 U.S. 573 ( 1961), International Association of Machinists,
Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB
1402, 1410-11 (1962).
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are replaced in the new system by the wrapper at-
tached by the automated tying machine.
The record shows that by eliminating the use of
mail sacks the work of inserting the labels has also
been eliminated and that the addressing functions
which remain have always been done by mailers. We
therefore find that this factor favors awarding the
disputed work to employees represented by the Mail-
ers.
Conclusion
Upon consideration of all pertinent factors in the
entire record, in particular the Employer 's assign-
ment, efficiency and economy of operations, and the
Employer's past practice, we conclude that the em-
ployees of the Times who are represented by the
Mailers, and not those represented by the Deliverers,
are entitled to the work in question and we shall de-
termine the dispute in their favor.
Accordingly, we shall award the disputed work to
those employees who are represented by the Mailers,
but not to that Union or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the Act, upon the ba-
sis of the foregoing findings and the entire record in
this proceeding, the Board hereby makes the follow-
ing Determination of Dispute:
1. Employees of The New York Times Company,
New York, New York, currently represented by New
York Mailers' Union No. 6, are entitled to perform
the work involved in placing wrappers on bundles of
newspapers and operating tying machines for the
processing of mail subscriptions.
2. Newspaper & Mail Deliverers' Union of New
York & Vicinity is not entitled, by means proscribed
by Section 8(b)(4)(D) of the Act, to force or require
The New York Times Company to assign the above
work to deliverers represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Newspaper & Mail
Deliverers' Union of New York & Vicinity shall noti-
fy the Regional Director for Region 2, in writing,
whether or not it will refrain from forcing or requir-
ing The New York Times Company, by means pro-
scribed by Section 8(b)(4)(D) of the Act, to assign the
work in dispute in a manner inconsistent with the
above determination.