New York Mailers' Union No. 6, ITU

National Labor Relations Board - Board Decisions

Jun 18, 1962

137 N.L.R.B. 665 (N.L.R.B. 1962)

NEW YORK MAILERS' UNION NO. 6, ITU 665
New York Mailers ' Union No. 6 , International Typographical
Union, AFL-CIO and The New York Times Company
Newspaper and Mail Deliverers ' Union of New York and Vicinity,
Ind. and The New York Times Company. Cases Nos. 1-CD-
221-1 and 2-CD-221-2. June 18, 1962
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act following a
charge filed by The New York Times Company, herein called the
Company, alleging that Newspaper and Mail Deliverers' Union of New
York and Vicinity, Ind., herein called Deliverers, had threatened,
coerced, and restrained the Company and induced and encouraged
employees to engage in a refusal in the course of their employment
to perform certain services with the object of forcing or requiring
the Company to assign said work to members of the Deliverers rather
than to members of the New York Mailers' Union No. 6, International
Typographical Union, AFL-CIO, herein called Mailers. On October
20, 1961, a charge alleging similar 8 (b) (4) (D) violations was filed
against the Mailers, except that the object of the alleged prohibited
conduct therein was to force or require the Company to assign said
work to members of the Mailers rather than to members of the Deliv-
erers. A duly scheduled hearing was held before James J. Graham,
hearing officer, on November 15, 22, and 30, 1961. 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. Thereafter,
the Company and the Deliverers filed briefs which have been duly
considered by the Board.
Upon the entire record in the case, the Board makes the following
findings :
1. The Company is the publisher of The New York Times and oper-
ates two plants in New York City; its newspapers are sold both within
and without the State of New York. The Company's gross revenues
during the past year were in excess of $1,000,000. 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 exercise jurisdiction
herein.
2. The Mailers and the Deliverers are labor organizations within
the meaning of the Act.
3. The dispute :
a. The work in dispute
The disagreement between the two Respondent Unions which gave
rise to this proceeding centered upon the tying into bundles of certain
137 NLRB No. 78.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advertising supplements printed by the Company. In addition to
publishing newspapers under its own masthead, the Company pro-
duces advertising materials in bulk for its advertising customers;
these supplements are called "dodgers" and are delivered to the cus-
tomer, who then distributes them to individual readers independently
of the Company's circulation or distribution departments. Like the
Company's regular newspapers, the dodgers come off the presses and
are carried by conveyor to the mailroom, where members of both
the Mailers and the Deliverers' Unions work. The mailers remove
all printed material from the conveyors and place it on tables, and
there is no issue over their right to do this work. After the news-
papers, or dodgers, are tied into bundles-the pinpointed work motion
constituting the focus of the dispute in this case-the deliverers
remove them from the table, place them on skids (wooden platforms),
and then move the skids by hydraulic lifts to trucks where they are
loaded and transported by deliverers to the delivery destinations.
Again, the deliverers' right to remove the bundles from the tables and
handle them from that point on is not questioned.
Most of the printed matter coming off the presses, of course, con-
sists of the consecutive editions of The New York Times and there is
no dispute as to which of the two groups of employees is entitled to
tie the newspapers. There is a well-established division of the work
of tying newspapers, determined by the point of destination of the
bundle. Papers going into what on the record was called the suburban
area, or outside the city limits, are normally tied by the mailers.
Papers to be delivered within the city (and, by unexplained tradition,
Hudson County in New Jersey) are tied by the deliverers. A ques-
tion arose over the tying of the advertising dodgers, publications
which the Company has occasion to print and to sell to its advertising
customers only six or eight times each year, and it is only the question
of which group of employees is entitled to tie these dodgers that must
be decided here.
b. Evidence of coercion and inducegment to cease work
In October 1961, the Company received an order for 900,000 copies
of a dodger from Damar Stores, Inc., to be delivered to the Blum
Bindery in Irvington, New Jersey, a point outside the city area. As
the dodgers started to come off the presses on October 16, the work of
tying was assigned to the mailers, following the general practice
applicable to newspapers. Alfred Mahoney, business agent of the
Deliverers Union, then told the assistant to the manager of the mail
and delivery department that the deliverers were entitled to the work
and "we will continue to tie it." In a short time, Mahoney spoke on
the telephone to John Murphy, assistant circulation manager, and
the two attempted to settle the dispute. According to Murphy's testi-
NEW YORK MAILERS' UNION NO. 6, ITU 667
mony, Mahoney insisted his men must do the work, and "he told me
that he would have to tie the bundles even after the mailers had tied
them in order for his men to deliver them."
Consistent with the original assignment, Murphy then ordered the
mailers to continue to tie the dodgers, with the further instruction
that if trouble ensued, they were simply to place the dodgers on the
skids untied. When the mailers again started to tie the bundles, the
deliverers began to retie them once over again. A flareup resulted,
two members of the Mailers' Union cut both ties on several bundles,
and another of them pushed a button, stopped the presses, and halted
the entire operation. When printing was resumed the dodgers were
placed on the skids untied where they remained.
The next morning Damar, the advertising customer, told the Com-
pany it wanted the dodgers delivered to a bindery in New York City
proper instead of to the original New Jersey destination. Whereupon,
again in keeping with the general practice for tying newspapers, the
Company assigned the disputed work to the deliverers, and the mailers
were instructed to remove the loose dodgers from the skids to the tables
so that the deliverers could tie them. The mailers refused to do as
they were asked. Instead, they consulted Klein, their day chairman,
and McDonald, the Mailers' business agent, both of whom supported
their position. The mailers continued to refuse to place any dodgers
on the tables, and the dodgers continued to accumulate on the skids.
During the day officials of the Company conferred with agents of the
Mailers Union, including McDonald. Repeatedly McDonald refused
the company requests that McDonald permit his union members to
move the dodgers to the tables for the deliverers to tie. It was not
until a few days later, when the General Counsel obtained a temporary
restraining order in the Federal district court, that the mailers started
to comply with instructions and place the dodgers on the tables. The
deliverers then tied them.
c. Contentions of the parties
Both Unions ask that the notice of hearing be quashed and the en-
tire proceeding discontinued and they advance two distinct and sepa-
rate grounds in support of their motions. Each of them contends
that there is no evidence showing either coercion or restraint upon the
Company, or inducement of employees to strike in order to force a
change in work assignment, and that therefore no basis exists for
finding reasonable cause to believe that Section 8(b) (4) (D) has been
violated by either Respondent. Each of them also points to arbitra-
tion clauses in their respective collective-bargaining agreements with
the Company and argues that those contract provisions constitute
agreed-upon methods for voluntary adjustment of the dispute as pro-
vided for in Section 10(k) of the statute.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to what an appropriate assignment by this Board should be
now in this proceeding, the Deliverers request that it be made in favor
of its members. The Mailers Union expressed no position on this ques-
tion at the hearing; it filed no brief thereafter.
The Company insists that the mailers were entitled to tie the dodgers
on October 16 when their destination was New Jersey, and that the
deliverers were entitled to the work on the next day when the point
of delivery had become New York City. The Company asks the
Board to award the work consistent with its assignments in each
situation.
d. Applicability of the statute
The Deliverers ' members in the mailroom refused to handle the tied
bundles of dodgers on October 16 without first retying them because
the work had not been assigned to them, and when their business
agent, Mahoney , learned of their action , he approved of it. Speaking
to Murphy , of the Company , a little later, he said his men would do
their regular work if they were permitted either to tie the bundles
initially or to tie them a second time after the mailers did so. That the
total import of his conversation with Murphy was that the deliverers
would continue to refuse to work unless their claim to tying work
were conceded is clear on the record as a whole. We are not persuaded
by the Deliverers ' argument that because its members were always will-
ing to perform their regularly assigned delivery work provided they
were also granted tying work, it cannot be said they struck or in any
way refused to work. We can hardly regard an offer to terminate
a, work stoppage already in process on condition that the initial strike
demand be yielded as evidence that there was no refusal to work
at all.
As to the conduct of the Mailers Union the next day, its members
flatly refused to move the dodgers on to the tying tables only because
the tying work had been assigned to the deliverers . And again, their
union officials ratified the work stoppage . Moreover, despite the Com-
pany's continued efforts to dissuade the Mailers ' business agent, Mc-
Donald, from such a continued resolve, he persisted in the work claim
and it took a court injunction order to get his members back on their
regular jobs.
We also find no merit in the Respondents ' contention that the arbi-
tration provisions of their respective contracts provide the parties
with an agreed -upon method for voluntary adjustment of the dispute.
The dispute is between the two unions . Arbitration under the Mail-
ers' contract would bind it and the Company ; arbitration under the
Deliverers ' agreement would bind only that Union and the Company.
NEW YORK MAILERS' UNION NO. 6, ITU 669
In neither instance would the second Union, party only to its own
contract, be affected.'
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 a
e. Merits of the dispute
There is no claim by either union, nor does the record in any way
indicate that any special skill is required to tie these dodgers into
bundles, that either of the two competing groups of employees is more
experienced in or capable of doing the disputed work than is the other,
or that there can be any rational basis-in terms of the nature of the
work-for awarding it to one or the other group. Basically, each
union contends, with little fact to support the conflicting assertions,
that the Company departed from past practice when, on October 16,
it assigned the work to the mailers, and again the next day, when it
reassigned it to the deliverers.
We have examined the collective-bargaining agreements between
the Company and the Unions and find them of no material assistance
in reaching the affirmative determination which we are called upon
to make. In pertinent part, the Mailers' contract reads : "... All ad-
vertising or promotional matter having no relation to the paper it-
self, or consisting of advertising not carried in regular editions, or
not carrying the name of the paper involved, shall be tied and handled
by separate crews who shall receive the compensation agreed upon
for the class of work performed." The following counterpart language
appears in the Deliverers' contract : "All advertising or promotional
matter that does not advertise or promote the publisher's own publica-
tion or which consists of advertising not carrying the regular editions,
or which does not carry the name of the publisher's own publication,
shall be tied, handled, and delivered by an extra crew."
On their face these contract provisions reveal overlapping coverages
for tying work on advertising material like the dodgers that were being
handled in this work dispute. Clearly, therefore, neither of them can
furnish a solid ground for awarding the work in every instance to
one union group or the other.
In the absence of factors directly related to the precise work dispute
presented, related considerations of custom and practice among other
1 The Deliverers ' contract also provides for tripartite arbitration of jurisdictional dis-
putes in the mail room. However, as the Mailers has refused to submit to such arbitra-
tion, this clause cannot constitute a voluntary method for adjustment within the mean-
ing of Section 10(k) of the Act.
2
In view of the above findings , we shall, and we hereby do, deny the Unions' motions
to quash the notice of hearing.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employers in the area or in the industry usually furnish a partial basis
of decision at least. Here, however, the parties declined to offer evi-
dence respecting any practice apart from the operations of this
Company.
The only remaining pertinent consideration on this record-whether
it be called a directly related factor or a sensible basis for award by
analogy-is the rather well-established past practice in tying the
Company's newspapers. Tying newspapers is the same work as tying
the dodgers and the Company has divided that work between these
same two groups of employees using the ultimate point of destination
as guide. There is every indication that this solution has been a happy
and workable one.
As stated above, none of the parties seriously disputes the Com-
pany's explanation that mailers tie newspapers going into suburban
areas and deliverers tie them when destined for city delivery. The rule
has not been inflexible but in general has been followed. Thus there
is evidence that the mailers in fact have tied all newspapers, both daily
and Sunday editions, going outside the city, and that the deliverers
tie all of the 413,000 copies of the daily newspaper except about 9,000,
and about 435,000 of the approximately 520,000 of the Sunday editions,
all going to city locations. The Company's decision to have the mailers
tie the dodgers on October 16, when they were destined for Irvington,
New Jersey, was, therefore, as the Company contends, an extension of
the accepted practice covering newspapers. Likewise, its assignment
of the work to the deliverers the next day, after the Company had been
advised by the customer to deliver the dodgers in the city itself, again
followed the apparently equitable formula used generally.
Dodgers are printed only infrequently, usually go to city locations,
and have therefore in most instances been tied by the deliverers. In
one instance, although they were sent to Mount Vernon, New York, in
the suburban area, the deliverers tied them. There is persuasive indi-
cation, however, that this was an inadvertent assignment. In any
event, a single deviation from what has substantially been a firm basis
of allocation cannot justify a continued departure from a clear
practice.
We have said in the Jones case that an affirmative award in these
proceedings must be "an act of judgment based on commonsense." 3
Apparently the Company's solution of dividing this work between
the two groups of employees on the basis of ultimate destination has
been a practical one and has operated satisfactorily in the past and
given relative stability to its operations. It followed the same sensible
guide in making the assignments which gave rise to this dispute. No
persuasive reason has been advanced why we should not ourselves ap-
ply the same practical and logical test now.
3J. A. Jones Construction Company, 135 NLRB 1402.
J. WEINGARTEN, INC. 671
Accordingly, upon the record as a whole, we shall determine the
dispute by assigning the work of tying dodgers to the mailer group of
employees in the mailroom represented by the Mailers, when the
dodgers are to be delivered to suburban areas, and to the deliverer
group of employees represented by the Deliverers' Union when they
are to be delivered to city destinations. Our present determination is
limited to the particular controversy which gave rise to these pro-
ceedings. In making this determination, we are not assigning the
disputed work to members of either the Mailers or the Deliverers or
to those unions.
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. When special advertising supplements are scheduled for delivery
to points within the city limits of New York or Hudson County, New
Jersey, they shall be tied by the deliverers in the mailroom, a group
represented by Newspaper and Mail Deliverers' Union of New York
and Vicinity, Ind. When special advertising supplements are sched-
uled for delivery to points outside the city limits of New York or
Hudson County, New Jersey, they shall be tied by mailers in the
mailroom, a group represented by New York Mailers' Union No. 6,
International Typographical Union, AFL-CIO.
2. Neither New York Mailers' Union No. 6, International Typo-
graphical Union, AFL-CIO, nor Newspaper and Mail Deliverers'
Union of New York and Vicinity, Ind., is lawfully entitled to force or
require The New York Times Company to assign the tying work in
dispute in a manner inconsistent with the foregoing determination.
3. Within 10 days from the date of this Decision and Determination
of Dispute, New York Mailers' Union No. 6, International Typo-
graphical Union, AFL-CIO, and Newspaper and Mail Deliverers'
Union of New York and Vicinity, Ind., shall notify the Regional
Director for the Second Region, in writing, whether or not they will
refrain from forcing or requiring The New York Times Company,
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.
J. Weingarten, Inc. and Retail Clerks International Association,
AFL-CIO. Case No. 23-CA-1360. June 18, 1962
DECISION AND ORDER
On April 24, 1962, Trial Examiner Lloyd R. Fraker issued his
Intermediate Report in the above-entitled proceeding, finding that
137 NLRB No. 81.