Newspaper Guild of New York, Local 3, Etc.

National Labor Relations Board - Board Decisions

Dec 30, 1964

150 N.L.R.B. 748 (N.L.R.B. 1964)

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1831 Nissen
Building, Winston-Salem , North Carolina , Telephone No. 724-8356 , if they have any
question concerning this notice or compliance with its provisions.
Newspaper Guild of New York, Local 3, American Newspaper
Guild , AFL-CIO and The New York Times Company
New York Mailers' Union Number Six , International Typo-
graphical Union , AFL-CIO and The New York Times Com-
pany. Cases Nos. 2-OD-309-1 and 2-CD-309-2. December 30,
1964 1
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, Series 8, as amended, following charges filed
on August 26, 1964, by the Employer, The New York Times Com-
pany, alleging the Newspaper Guild of New York, Local 3, Amer-
ican Newspaper Guild, AFL-CIO, and New York Mailers' Union
Number Six, International Typographical Union, AFL-CIO (herein
called Guild and Mailers, respectively), have violated Section 8(b)
(4) (D) of the Act. A duly scheduled hearing was held before Hear-,
ing Officer Jacques Schurre on September 29 and October 1, 6, 7,
and 8, 1964. All parties appearing were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to adduce evi-
dence bearing on the issues. The rulings made at the hearings are
free from prejudicial error and are hereby affirmed. Briefs were
filed by the Employer, and by the Guild and the Mailers who
appeared at the hearing as parties-to the dispute.
Upon the entire record in the case, the Board 1 makes the following
findings :
I. THE BUSINESS OF THE EMPLOYER
The Employer is the publisher of The New York Times news-
paper. Its papers are sold both within and without the State of New
York. Its gross revenues during the past year were in excess of
$1,000,000. Accordingly, we find that the Employer is engaged
in commerce within the meaning of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction herein.
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Fanning, Brown,
and Jenkins]
150 NLRB No. 68.
NEWSPAPER GUILD OF NEW YORK, LOCAL 3, ETC.
II. THE LABOR ORGANIZATIONS' INVOLVED
749
The Guild and the Mailers' Union are both labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The work at issue
The work that gave rise to this proceeding consists of the various
stages of operating the FIMA machine 2 recently installed by the
Employer for the purpose of addressing wrappers for delivery of
newspapers. Prior to the purchase of the FIMA, the Employer's
wrappers were addressed by various methods. However, the 'bulk
of the wrappers were addressed by two processes involving various
stages of activity by members of both the Guild and the Mailers.
Guild employees are charged with maintaining the blotters or books
containing the' names and addresses of the customers in shipping
sequence order., The blotter also contains the name of the designated
carrier and directions for shipment as well as the quantity of papers
ordered for each 'day of the week; The blotter is'prepared by having
a metal addressograph plate made up in the stencil department by
a Guild member containing the above listed information about the
customer. This plate is used to print the blotter. Guild employees
also print the yellow labels 3 and pink labels used for individual
mailings that are affixed by Guild employees to the wrapper or
directly to the newspaper. The blotter, which lists between two
and three thousand accounts is the reference point for the mailers
who prepare the top wrappers for the bundled newspapers. Every
evening an employee from the mailroom comes to the Guild area
on the seventh floor and picks up the blotter books, ' taking them
back to the mailroom area. The mailers then -proceed to print the
wrappers. In carrying out this 'function, the mailers use a rotary
press, called a Brooklyn press, which was introduced into' the wrap-
ping operation several years ago. The press is designed to produce
two printed wrappers simultaneously with each turn of two identical
curved rubber plates. Taking information from the blotter as to
the customer,, the quantity, and routing information, the mailer
selects the appropriate plates from .a cabinet, puts them in the press
and prints the desired number of wrappers. A mailer must be in
attendance at all times during the operation of the press.
The FIMA, purchased in April 1964, is designed to replace the
present method of reproducing wrappers, by employing electronic
2The name "FI11IA" is derived from the first letters of the name of the manufacturer,
Fabbrica Italiana Afacchine Aziendali of Italy
3 The yellow labels which account for approximately 30 percent of the wrappers are
affixed to the wrappers by the mailers using a Dick stamping machine The Mailer also
hand -stamps the bundle size and shipping instructions.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
data processing equipment. The new procedure involves the elimina-
tion of the Brooklyn press and, in a sense, the blotter as it is now
used in the wrapping operation. Under the FIMA process, all
customers, the size of their orders, and their normal shipping pro-
cedures will be punched out on an IBM card. At the same time,
the same information is embossed on metal printing plates which
are sequenced and synchronized with the IBM card. When it is
necessary to prepare wrappers, the IBM cards are inserted in the
reader section of the FIMA, while the embossed plates are put into
feed trays on the printer side. As the information on the card is
read by the reader, electric impulses are sent through the connect-
ing cables to the printer where, according to the directions received
from the reader, the corresponding address plate automatically prints
the required number of wrappers. As each card is fully read, and the
order finished, the card and the plates are discharged out of the
machine into discharge trays, retaining their sequence and synchro-
nization. Neither unit has any operational value without the other.
Initially, the Employer had intended to install the FIMA in the
mailroom. However, being advised that the machine should operate
in a dust-free area, the machine was installed in the air-conditioned
electronic data processing room.
On August 18, 1964, the Employer announced that it would allo-
cate to the Guild employees the responsibility for maintaining up-
to-date and properly sequenced IBM cards and for inserting the
cards in and retrieving them from the reader, and to the Mailers
it would allocate the work of operating the reader and printer,
including the plate feed, and paper, feed, as well as the removing
of the plates and the delivery of the finished wrapper to the mail-
room. Following announcement of the Employer's assignment of the
work, both the Guild and the Mailers' Union claimed the entire
operation of the FIMA to the total exclusion of the competing union,4
and threatened to strike if the proposed work assignments were
effectuated.
B. Contentions of the parties
The Employer contends that the Board should find that a juris-
dictional dispute exists and assign the work in dispute to the parties
in 'accordance with the assignment announced on August 18, 1964.
The Employer contends that this assignment preserves and con-
tinues the preexisting functions historically performed by the two
Unions prior to the Fima. The Employer asserts that maintaining
up-to-date and properly sequenced IBM cards plus the work of
4 The Mailers do not contest assigning to Guild members the function of preparing the
cards or plates and maintaining and storing them in proper sequence
NEWSPAPER GUILD OF NEW YORK, LOCAL 3, ETC. 751
maintaining and inserting and retrieving the same correspond to
the function of maintaining the blotter, in view of the fact that the
cards are in fact a substitution for the blotter insofar as the wrapper
function is concerned.5 The Employer further asserts that skill is
not a factor, that there would be no substantial difference from the
standpoint of efficiency or economy of the operation if the disputed
work were assigned to Guild members, and that the assignment does
not conflict with either contract or the Guild's certification .6
The Guild contends that its members exclusively operate electronic
data processing equipment and are the only employees who ever put
a punch card in any machine for any reason in the normal course of
their work. Thus the Guild argues that 'since the FIMA is an elec-
tronic data processing machine, its members ' alone are entitled `to
operate it in conformance with their traditional and historical juris-
diction, as well as under the terms of the Guild's contract with the
Employer.' ' In addition, the Guild contends that the FIMA prints
with embossed metal plates, and that this parallels the work Guild
members had been doing printing the yellow labels, which, as
noted above, are presently used on approximately 30 percent of all
wrappers. Finally, the Guild contends that the physical location
of the machine, in the electronic data processing department which
is presently represented by the Guild in, the commercial unit, com-
pels the assignment of the work to its members' on the theory that
there has long been a history with the Employer of work assignments
based on the physical location of the work in question.
The Mailers contends that its members are entitled to the work
on the basis of its historical jurisdiction over the work of preparing
wrappers, and the fact that the FIMA is basically a printing machine
printing directly on the wrapper as had heretofore been done on
the Brooklyn press. The Mailers also assert that the location, of
the machine in the electronic data processing room is of no conse-
quence in view of the reasons which impelled the Employer to
locate the machine there. The Mailers also contend that the work
of inserting and retrieving cards from the reader should be assigned
to its members rather than to Guild members, on the theory that
heretofore Guild members only compiled and supplied information
to the Mailers by delivering over to the Mailers the blotter, and
that it was the Mailers' function to deliver this information via the
rubber plates into the printing press.
5 There is no dispute over the continued assignment to the Guild employees of the
work of embossing the stencils that will be used in the FIMA printer.
6 The Guild claims that in 1940 It was certified by the Board in Case No . 2-R-1824,
as representative of the employees in the commercial department.
7 Both Unions claim that under their contracts new functions that supplant existing
work shall fall within the jurisdiction of the work that was supplanted.
775-692-65-vol. 150-49
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Applicability of the statute
Section 10(k) of the Act empowers the Board to determine the
dispute out of which a Section 8(b) (4) (D) charge has arisen. How-
ever, before the Board proceeds with a determination of dispute,
it must be satisfied that there is reasonable cause to believe that
Section 8(b) (4) (D) has been violated. As the record clearly shows
that both the Guild and the Mailers' Union threatened the Em-
ployer with work stoppages if the proposed assignments of work
on the FIMA were effectuated, we find, on the entire record, that there
is reasonable cause to believe that a violation of Section 8(b) (4) (D)
has occurred and that the work dispute is properly before the Board
for determination under Section 10(k) of the Act.
D. Me7rits of the dispute
Section 10(k) of the Act requires the Board to make an affirma-
tive award of disputed work after giving due consideration to various
relevant factors, and the Board has held that its determination in
jurisdictional dispute cases is an act of judgment based on common-
sense and experience in balancing such factors.8
The Guild disputes the assignment of the operation of the FIMA
to the members of the Mailers' Union, and the Mailers dispute the
assignment of the work of inserting, retrieving, and handling card
jam-ups to members of the Guild. The record shows that upon in-
stallation of the FIMA machine, approximately 15 members of the
Mailers' Union and their supervisors received several weeks training
in the operation of the FIMA. Although this work is closely re-
lated to, if not identical to, the operation of other electronic data
processing equipment, the record in no way indicates that in per-
forming this work the Mailers are required to perform a fuller gamut
of the specialized skills usually possessed and exercised by IBM
operators and technicians. Thus, as to the skills involved,- there is
no question but that members of both the Mailers and the Guild
are qualified to do the work of operating the FIMA, and that the
FIMA is in a sense a relatively simple machine to operate.
Past and area practice offer little support to either claim in view
of the fact that the FIMA is an entirely new machine that is being
put into operation in this country for the first time by the Employer
herein.
The respective contracts of each Union spell out their jurisdictional
limits and both include a clause designed to protect this jurisdiction
against encroachment by technological change. To the extent the
s International Association of Machinists , Lodge No. 1743, AFL-CIO (J. A! ^ Jones
Constructtion Company ), 135 NLRB 1402 , citing N.L .R B v. Radio & Television Broadcast
Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO
(Columbia Broadcasting System ), 364 U.S. 573.
. NEWSPAPER GUILD OF NEW YORK, LOCAL 3, ETC. 753
contracts aid in determining the dispute, they support an award to
members of each disputant of that part of the FIMA work which
is a, functional substitute for work they previously performed.
We view the dispute to be decided here as a narrow one, limited
to the operation of the FIMA by the mailers and the insertion and
retrieving of the • IBM cards by the Guild members. Upon con-
sideration of all pertinent factors in the entire record, we shall not
disturb the Employer's assignment of the disputed work in part to
the Mailers' members and in part to the Guild members. It is clear
that the Employer recognized that-the use of the FIMA -would have
an impact on the work assignments of employees in two separate
bargaining units. It is equally clear that the Employer sought to
minimize the impact created by the use of this new machine by
dividing the work as closely as possible along prior functional lines,
taking into consideration the skills and experience heretofore pos-
sessed by the employees in the two affected groups, and their adapta-
bility to the new machine.
An affirmative award in favor of the Mailers as to the operation of
the FIMA would be supported by the fact that they are apparently
capable of satisfactorily performing that portion of the work already
assigned to them. In addition, the record is clear that an award of
the operation of the FIMA to the Mailers would comport with rea-
sonable standards of efficiency and economy of operation
On the other hand, we agree with the Employer's assignment to
the Guild employees of the function of inserting and retrieving the
IBM cards as well as the responsibility of handling any situation
where a card jam-up occurs during the operation of the FIMA. The
record clearly shows that the Guild has long had jurisdiction over
IBM equipment, the compiling of information to be used therein,
and the custody and maintenance of the cards containing the in-
formation put into the IBM machines. By assigning this phase of
the work to Guild members, the Employer did nothing more than
recognize this long-standing function of the Guild employees. In
addition, to accept the Mailers' contention would not only divide
possession of the cards, but, more importantly, responsibility for
their condition, sequencing, and synchronization.lo
On the basis of the record as a whole, and on appraisal of the
relevant considerations, including the Employer's assignment of the
work, the nature of the work, the skills of the employees represented
9 We also reject the Guild 's contention that the physical location of the FIMA in the
IBM room compels an award of the work to its members Cf New York MaAZers' Union
No. 6, I.T.U., AFL-CIO (News Syndicate Co., Inc.), 141 NLRB 573, 575
10 We do not feel that this award of work is in conflict with the assignment to the
Mailers of the inserting and retrieving of the metal plates in view of the fact that they
are more durable and less subject to damage or injury while being handled during the
operation of the FIMA . In addition , this function closely parallels the former function
of handling the rubber plates used on the Brooklyn press.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the two Unions and their ability to perform the work, and the
degree of economy and efficiency effectuated, we shall determine the
existing jurisdictional dispute by awarding the work of operating
the FIMA to the employees of the Employer represented by the
Mailers' Union rather than to employees represented by the Guild,
and by awarding the work of inserting and retrieving the IBM cards
as well as servicing card jam-ups to employees represented by the
Guild rather than to employees represented by the Mailers' Union.
In making this determination, we are assigning the disputed work
to the employees in the bargaining unit presently represented by the
Mailers' Union, and not to the Mailers or its members, and to em-
ployees in the bargaining unit presently represented by the Guild,
and not to the Guild or its members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings of fact and upon the en-
tire record in this case, the Board makes the following determina-
tion of dispute pursuant to Section 10(k) of the Act:
1. Employees engaged as mailers, currently represented by New
York Mailers' Union Number Six, International Typographical
Union, AFL-CIO, are entitled to perform the work of operating
the FIMA machine for the purpose of printing addresses on wrap-
pers. Employees engaged in preparing, handling, and storing IBM
cards, currently represented by the Newspaper Guild of New York,
Local 3, American Newspaper Guild, AFL-CIO, are entitled to per-
form the work of inserting, retrieving, and servicing IBM card
jam-ups in the operation of the FIMA machine.
2. Newspaper Guild of New York, Local 3, American Newspaper
Guild, AFL-CIO, is not entitled by means proscribed by Section
8 (b) (4) (D) to force or require The New York Times Company,
to assign the operation of the FIMA machine to employees employed
in the electronic data processing room who are currently represented
by Newspaper Guild of New York, Local 3, American Newspaper
Guild, AFL-CIO. New York Mailers' Union Number Six, Interna-
tional Typographical Union, AFL-CIO, is not entitled by means pro=
scribed by Section 8 (b) (4) (D) to force or require The New York
Times Company to assign the work of inserting, retrieving,. and
servicing IBM card jam-ups in the operation of the FIMA machine to
employees who are currently represented by the New York Mailers'
Union Number Six, International Typographical Union, AFL-CIO.
3. Within 10 days of the date of this Decision and Determination
of Dispute, Newspaper Guild of New York, Local 3, American
Newspaper Guild, AFL-CIO, and New York Mailers' Union Number
Six, International Typographical Union, AFL-CIO, shall notify the
Regional Director for Region 2, in writing, whether or not they will
LEEDS PACKING COMPANY 755
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.
Lumberjack Meats, Inc. d/b/a Leeds Packing Company and
United Packinghouse , Food and Allied Workers, AFL-CIO
James A. Davis, individually and as agent of Lumberjack Meats,
Inc. and United Packinghouse , Food and Allied Workers, AFL-
CIO. Cases Nos. 10-CA-5560 and 10-CA-5571. December 31,
1964
DECISION AND ORDER
On June 5, 1964, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that Respondent
Employer had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner dismissed the complaint
against Respondent James A. Davis. Thereafter, only the Re-
spondent Employer filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the en-
tire record in this case, including the Trial Examiner's Decision and
the exceptions and brief, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as its
Order, the Order recommended by the Trial Examiner, and orders
that the Respondent Employer, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's
Recommended Order, with the following modifications:
1. Add the following as paragraph 2(b), and renumber the fol-
lowing paragraphs of section 2 accordingly :
"(b) Notify Elvis J. Barnes, if presently serving in the Armed
Forces of the United States, of his right to full reinstatement upon
150 NLRB No. 67.