Newspaper And Mail Deliverers' Union Of New York And Vicinity

National Labor Relations Board - Board Decisions

Jan 7, 1987

282 N.L.R.B. 642 (N.L.R.B. 1987)

642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newspaper and Mail Deliverers ' Union of New York
and Vicinity and New York News, Inc. and
New York Mailers' Union No. 6. Case 22-CD-
485
7 January 1987
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
The charge in this Section 10 (k) proceeding was
filed 7 August 1986 by the Employer, alleging that
the Respondent , Newspapers and Mail Deliverers'
Union of New York and Vicinity (Drivers) violat-
ed Section 8(bX4)(D) of the National Labor Rela-
tions Act by engaging in proscribed activity with
an object of forcing the Employer to assign certain
work to employees it represents rather than to em-
ployees represented by the New York Mailers'
Union No . 6 (Mailers). The hearing was held 10
September 1986 before Hearing Officer Bennett
Muraskin.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
I., JURISDICTION
The Company, a New York corporation, is en-
gaged in the production, distribution and We of
newspapers at various facilities, including its facili-
ty at Kearney, New Jersey, where it annually re-
ceives gross revenues exceeding $200,000. The par-
ties stipulate, and we find, that the Employer is en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act and that Drivers and Mail-
ers are labor organizations within the meaning of
Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Company is engaged in the production, dis-
tribution, delivery, and sale of the New York Daily
News, a daily and Sunday metropolitan newspaper.
The Company prints its daily editions and the
black and white portions of its Sunday edition at
three plants, located in Brooklyn , New York;
Garden City, New York; and Kearney, New
Jersey. The Sunday edition of the newspaper has
three components: the main sheet, the regional sec-
tions, and -the -color and rotogravure (color and
roto) package.
Until August 1986,1 the Kearney plant contained
an "insert operation" at which the editorial compo-
nents of the color and roto section were combined
with materials provided by advertisers ., As a result
of declining productivity of the insert operation at
the Kearney plant, The News decided to contract
out the insert operation-the work of bundling ad-
vertising and magazine inserts into the comics sec-
tion of the "Sunday edition. Employees represented
by the Drivers unloaded the inserts, and employees
represented by the _Mailers stored, sorted, and
stacked ' the inserts . Depending on whether the
bundle of inserts was destined for delivery to a
wholesaler or for direct delivery to a retailer, ,em-
ployees represented by either Union operated the
tying machine . Employees represented by the Mail-
ers tied the bundles going to wholesalers and em-
ployees represented by the Drivers tied bundles in-
tended for direct delivery. Once the bundles' of in-
serts were tied , employees represented by the Driv-
ers loaded them onto delivery trucks.
As of 2 August, The News began to use a sub-
contractor to bundle all the inserts and to deliver
directly those bundles destined for wholesalers. As
a result, all employees represented by the Mailers
were laid off. On 3 August The News opened a
new delivery facility in Kearney, New Jersey (the
Delivery Center), where it unloads the inserts bun-
dled by the subcontractor for retailers , and reties
and loads the bundles onto trucks for direct deliv-
ery to them. This work is performed by ;employees
represented by the Drivers . No bundling of inserts
is performed at the Delivery Center.
On 5 August George McDonald , president of the
Mailers, told George ' Thornton, vice, president of
labor relations at The News , that the Mailers
claimed certain work performed at the Delivery
Center and advised Thornton that it would insti-
tute an arbitration proceeding to enforce its claim.
Thornton then informed Joseph Cronin, president
of the Drivers, of his conversation with McDonald.
Cronin threatened to strike The News if any of the
work was taken away from employees represented
by the Drivers or if The News agreed to partici-
pate in arbitration . Rather than strike or picket, the
Drivers agreed to refrain from any economic
action pending resolution of this dispute by the
Board.
B. Work in Dispute
The disputed work involves the off-loading of in-
serted products, i.e., a package of printed inserts
' All dates are for 1986, unless otherwise indicated.
282 NLRB No. 97
NEWSPAPER & MAIL DELIVERERS (NEW YORK NEWS)
enclosed in the comics of the Sunday edition of the
New York Daily News wrapping , tying; and/or la-
beling them is necessary , and reloading them onto
delivery trucks at the Kearney, New Jersey Deliv-
ery Center facility.2
C. Contentions of the Parties
The Employer contends that the work in dispute
has been properly assigned to employees represent-
ed by the Drivers but that the Drivers has never-
theless threatened to strike The News to prevent it
from reassigning the work in dispute to employees
represented by the Mailers.
The Drivers does not dispute the Employer's
contention.
The Mailers contends that the work in dispute is
work that its members previously performed at an-
other facility.
D. Applicability of the Statute
Both Unions continue to claim the disputed
work. The Drivers threatened a work stoppage if
the work were reassigned to the Mailers. The Mail-
ers commenced an action in United States District
Court seeking an order compelling tripartite arbi-
tration of the dispute, but the request was denied
by the court, deferring to the Board for resolution
in a Section 10(k) proceeding. No agreed-upon
method exists for the resolution of the instant dis-
pute.
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred and that
there exists no agreed-upon method for voluntary
adjustment of the dispute within the meaning of
Section 10(k) of the Act. Accordingly, we find that
the dispute ' is properly before the Board for deter-
mination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
various factors. NLRB x Electrical Workers IBEW
Local 1212 (Columbia Broadcasting), 364 U.S. 573
(1961). The Board has held that its determination in
a jurisdictional dispute is an' act of judgment based
on common sense and experience, reached by bal-
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
2 We have modified the description of the work in dispute to identify
the specific facility involved.
643
`l. Certifications and collective-bargaining
agreements
There is no outstanding relevant certification.
The Drivers and the Mailers each has a collec-
tive-bargaining agreement with the Employer and
asserts that its respective agreement supports its
claim to the disputed Work. To the extent that the
collective-bargaining agreements support such
competing claims, we find that the contract provi-
sions are not determinative of this work dispute.
The' Mailers' jurisdictional clause, at section 3(a) of
its collective-bargaining agreement with the Em-
ployer, provides that jurisdiction "heretofore rec-
ognize shall be preserved ," and that the Employer
and the Union intend that the agreement "neither
take away nor add to such jurisdiction." The juris-
dictional description which follows, at Section 3(b),
preserves all "mailing work," but precludes either
party from invoking the jurisdictional description
"to change present work." Section 3(c), reads:
"Both parties to this Agreement wish to preserve
during its lifetime the historical jurisdiction of New
York Mailers' Union No. 6 in the plants of the
Publishers signatory ." Section 1(k) is a general pro-
vision referring to the parties' "historical rights"
and their mutual desire to preserve them "to the
greatest extent possible." Section 17 allows the
Employer control over the manner of wrapping or
tying if the work is performed in accordance with
section 3. None of these provisions specifically
grants the work to Mailers-represented employees,
and section 3(c) preserves Mailers' jurisdiction only
as it has historically existed in the particular plant.
Similarly, the Drivers' collective-bargaining
agreement with the Employer does not , expressly
refer to the specific work in dispute . Section 2,
under "Occupation Coverage," contains no lan-
guage specifying that such, work belongs to em-
ployees it represents . Section 9 reads: "All parts or
sections of a newspaper destined for delivery
within the Metropolitan Area, printed in a plant
not owned or controlled by the Publisher of such
newspaper shall be delivered in bulk from the place
of printing to the plant or plants operated' by the
publisher, and .. , . they shall be handled by em-
ployees represented by the Union." Neither of
these provisions explicitly grants the disputed work
to employees represented by the Drivers.
Accordingly, we find that this factor does not
favor an award to employees represented by either
Union.
2. Company preference and past practice
The Employer has assigned the work in dispute
at the Delivery Center to employees represented
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Drivers. This assignment is consistent with
the practice established in connection with the
insert operation that existed at the Kearney plant
until August 1986, inasmuch as the disputed work
is virtually the same as the work the drivers per-
formed at that plant while such operation lasted.
There, drivers unloaded all inserts. At the Delivery
Center, drivers have been assigned the task of un-
loading the inserts when they arrive from the sub-
contractor. At the Kearney plant, drivers tied bun-
dles intended for direct delivery. At the Delivery
Center, all bundles are intended for direct delivery
and drivers have been assigned the task of placing
the second tie to secure the bundles that arrive
from the subcontractor. Finally, at the Kearney
plant, once bundles of inserts were tied, drivers re-
loaded them onto delivery trucks. Similarly, at the
Delivery Center, the task of reloading the bundles
onto the delivery trucks following tying and/or la-
beling has been assigned to drivers. Therefore, we
find no merit to the Mailers' claim that they are at-
tempting to preserve work previously performed
by employees it represents. The Employer also pre-
fers this assignment.
Furthermore, in 1973 an arbitrator resolved a
number of jurisdictional disputes involving The
News, the Drivers, and the Mailers, one of which
concerned which group of employees would tie
bundles of the Sunday gravure product at The
News' "Newspoint" facility located in Long Island
City, New ' York. (Newspoint was closed in 1982
when the insert operation was moved to the Kear-
ney plant.) The arbitrator concluded that since de-
livery was direct (as opposed to delivery to whole-
salers), "the work of tying for such deliveries
should be given to drivers." Although the tying of
the inserted product is now performed by the sub-
contractor, the second tie placed by Drivers-repre-
sented employees is consistent with its jurisdiction
over direct deliveries. Such an assignment is also
consistent with the Board's 10(k) decisions involv-
ing this Employer in New York Mailers' Union No.
6 (New York News), 270 NLRB 303 (1984), and
Newspaper & Mail Deliverers' Union (New York
News), 270 NLRB 307 (1984). Accordingly this
factor favors an award to employees represented
by the' Drivers.
3. Area and industry, practice
The evidence is insufficient to establish an area
or industry practice concerning, the work in dis-
pute. Accordingly, this factor favors neither group.
4. Relative skills
Because performance of the work requires no
special skills, this factor favors neither group.
5. Economy and efficiency of operations
The Delivery Center is currently staffed exclu-
sively by employees represented by the Drivers.
There is no work at the Delivery Center of the
kind Mailers performed at the Kearney facility.
Thus, if mailers were required to be employed at
the Center, The News would not be able to use
them unless they were given functions that are cur-
rently being performed by drivers or which fall
within the exclusive jurisdiction of the drivers.
Hiring obligations with respect to the Drivers,
however, would remain unchanged , because driv-
ers could perform all tasks required at the Delivery
Center, which substantially involves receiving in-
serted product destined for direct delivery, and
preparing and loading that product for delivery,
i.e., tying bundles, making up "key bundles," and
loading trucks. These tasks were not traditionally
performed by employees represented by the Mail-
ers. Furthermore, if there were any need to reas-
sign employees or fill down time at the Delivery
Center, The News could shift Drivers-represented
employees at will, because all the work to be per-
formed at the Center would be within the Drivers'
jurisdiction. Finally, the use of Mailers-represented
employees would require the hiring of Mailers'
foremen-additional supervision not required by
The News at this time. Accordingly, this factor
favors assignment of the work to employees repre-
sented by the Drivers.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Drivers
are entitled to perform the work in dispute. We
reach this conclusion relying on company prefer-
ence, past practice, and economy and efficiency of
operation. In making this determination, we are
awarding the work to employees represented by
Respondent, not to that Union or its members. The
determination is limited to the controversy that
gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees of New York News, Inc. represented
by Newspaper and Mail Deliverers' Union of New
York and Vicinity are entitled to perform the work
of off-loading inserted products, i.e., a package of
printed inserts enclosed in the comics of the
Sunday edition of the New York Daily News,
wrapping, tying, and/or labeling them if necessary,
and reloading them onto delivery trucks at the
Kearney, New Jersey Delivery Center facility.