Newspaper & Mail Deliverers (New York News)

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 307 (N.L.R.B. 1984)

NEWSPAPER & MAIL DELIVERERS (NEW YORK NEWS)
Newspaper and Mail Deliverers' Union of New York
City and Vicinity and New York News Inc. and
New York Mailers Union Number 6, Interna-
tional Typographical Union, AFL-CIO. Case
29-CD-3 16
30 April 1984
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
The charge in this Section 10(k) proceeding was
filed 17 May 1983 by the Employer, alleging that
the Respondent, Newspaper and Mail Deliverers'
Union of New York City and Vicinity (Drivers),
violated Section 8(b)(4)(D) of the National Labor
Relations Act by engaging in proscribed activity
with an object of forcing the Employer to assign
certain work to employees it represents rather than
to employees represented by New York Mailers
Union Number 6, International Typographical
Union, AFL-CIO (Mailers). The hearing was held
20 September 1983 before Hearing Officer Jane B.
Jacobs.
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 sale of
newspapers at various facilities, including its facili-
ty in Brooklyn, New York. The Company annually
receives gross revenue from its publishing oper-
ations exceeding $200,000, and holds membership
in, and subscribes to, interstate news services, pub-
lishes nationally syndicated features, and advertises
nationally sold products. The parties stipulate, and
we find, that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and that Drivers and Mailers are labor
organizations within the meaning of Section 2(5) of
the Act.
11. THE DISPUTE
A. Background and Facts of Dispute
The Company publishes and distributes the New
York Daily News and the New York Sunday
News. Although the main section of the two news-
papers remains the same, the Company publishes
different editions for New York City's five bor-
270 NLRB No. 53
oughs, for Nassau and Suffolk counties, and for
New Jersey. The Company's Manhattan and
Brooklyn plants currently' produce many of the
editions. In 1982 the Company developed a reorga-
nization plan that entailed opening two new plants
and closing the Manhattan plant. In early 1983 the
Company decided to transfer production of its
Staten Island edition from the Manhattan operation
to the Brooklyn plant as part of its plan to phase
out the Manhattan operation and print all city edi-
tions at the Brooklyn plant. On 16 March the Com-
pany informed the Unions by letter that the trans-
fer would be effective 23 March.1 The Drivers re-
plied by letter dated 18 March that, unless the
Company assigned jurisdiction over certain work
associated with the transfer to Drivers-represented
employees, it would strike. On 23 March the Com-
pany began production of its Staten Island edition
at the Brooklyn plant, using Drivers-represented
employees to perform the claimed work.
The Company uses large presses to print its
newspapers. Each press is linked by a conveyor to
equipment and machinery known as a stacker line,
which is located in the "mailroom." After newspa-
pers arrive at a stacker line they pass through a
counting machine; a stacking machine then stacks
them into bundles. On some lines the conveyor car-
ries the bundles to a tying machine, which ties the
bundles with plastic or wire. The number of news-
papers in a bundle varies according to the thickness
of the particular edition being printed. An automat-
ed stacker line transports the tied bundles on addi-
tional conveyor belts directly to loading docks.
Nonautomated stacker lines do not extend to load-
ing docks; consequently, bundles on such lines
must be manually removed and distributed.
Drivers-represented routemen transport and de-
liver newspapers from the printing plant to
"drops." The number of newspapers assigned to a
particular drop varies, but in almost every instance
the routeman must determine for each drop the
number of bulk bundles required, plus an additional
number of newspapers to make up the predesignat-
ed total. If, for instance, a given drop takes 160
newspapers, and the bundles that day consist of 75,
the routeman delivers 2 bundles and an "odd
bundle" of 10 newspapers that are tied manually.
Newspapers used to supplement orders are called
"odds" or "odd bundles."
The method of making odds differs significantly
in the Manhattan and Brooklyn plants. At Manhat-
tan, most of the stacker lines are automated. Driv-
ers-represented employees remove tied bundles
from nonautomated lines, put the bundles on roll-
' All dates are in 1983.
307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing tables, and roll the tables to a central distribu-
tion center, where Drivers-represented delivery
clerks are stationed. The clerks, who account for
and dispense newspapers in the center, assign the
tables to routemen, who roll them to loading docks
and place the bulk bundles into their trucks. Mail-
ers-represented employees, however, remove
untied bundles from nonautomated lines and roll
them to the distribution center, where the delivery
clerks assign them to routemen in the same fashion
as the tied bundles. The routemen use the untied
bundles to make odds, and the tied bundles for
"bulk" delivery.
Because only 4 of Brooklyn's 12 stacker lines are
automated, many more tables are used there to
transport the newspaper bundles from nonautomat-
ed lines. The conveyor takes all newspapers
through tying machines. Drivers remove the tied
bundles from the line and place them on rolling
tables. Because the Brooklyn plant has no central
distribution center, Drivers-represented clerks are
stationed throughout the mailroom. Drivers-repre-
sented employees roll the tables to the delivery
clerks, who count the papers, determine how many
are needed for bulk delivery and for odds makeup,
and assign them to Drivers-represented routemen.
These assignments occur in the mailroom near the
stacker lines. After routemen obtain their newspa-
pers, they proceed to any accessible area within the
mailroom and cut open some of the tied bundles to
make up odds. The Brooklyn process, unlike Man-
hattan's, does not use Mailers-represented employ-
ees to remove any bundles from the stacker lines,
either for bulk delivery or for odds makeup; only
Drivers-represented employees transport bundles
from the stacker line to the clerks.
When the Company permanently transferred its
Staten Island edition from Manhattan to Brooklyn
in March 1983, it retained the Brooklyn procedure
for assembling odds. During the decade preceding
1982, the Company occasionally produced at the
Manhattan plant editions normally printed at the
Brooklyn plant; conversely, sometimes a Brooklyn
edition was temporarily moved to the Manhattan
plant. Without exception, the Company produced
and distributed the transferred editions using the
system where the edition was printed.
B. Work in Dispute
The disputed work involves removing newspa-
pers from nonautomated stacker lines and deliver-
ing them on rolling tables to employees who use
the newspapers to make up odd bundles at the
Company's facility in Brooklyn, New York.
C. Contentions of the Parties
The Company contends that the work should be
awarded to Drivers-represented employees based
on company preference and past practice, area and
industry practice, economy and efficiency of oper-
ation, and safety. Drivers contends that the work
should be awarded to employees it represents,
based on its collective-bargaining agreement with
the Company, company preference and past prac-
tice, area and industry practice, and economy and
efficiency of operation. Mailers contends that the
work should be awarded to Mailers-represented
employees based on its collective-bargaining agree-
ment and past practice at the Manhattan plant.
D. Applicability of the Statute
The parties have stipulated, and uncontroverted
evidence supports the stipulation, that Drivers in-
formed the Company that, unless the disputed
work were assigned to Drivers-represented em-
ployees, Drivers would strike. The parties also stip-
ulated that there is no agreed method of voluntary
resolution of this dispute. We therefore find reason-
able cause to believe that a violation of Section
8(b)(4)(D) has occurred and that there exists no
agreed method for voluntary adjustment of the dis-
pute within the meaning of Section 10(k) of the
Act. Accordingly, we find that the dispute is prop-
erly before the Board for determination.
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 v. 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),
136 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Certification and collective-bargaining
agreements
There is no evidence that the Board has certified
either Drivers or Mailers as the collective-bargain-
ing representative for a unit of the Company's em-
ployees.
The Mailers' jurisdictional clause, at section 3(a)
of its collective-bargaining agreement with the
Company, provides that jurisdiction "heretofore
recognized shall be preserved," and that the Com-
pany and Union intend that the agreement "neither
308
NEWSPAPER & MAIL DELIVERERS (NEW YORK NEWS)
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 l(k) is a general pro-
vision referring to the parties' "historical rights"
and their mutual desire to preserve them "to the
greatest possible extent." A separately executed
memorandum of agreement establishes "manning
levels" for certain work, but section H of the docu-
ment specifically excludes from those provisions
"the handling of loose or tied bundles for delivery
dept. odds by employees covered by the Contract."
It is readily apparent that none of these provisions
grants the claimed work to Mailers-represented em-
ployees, and section 3(c) preserves Mailers jurisdic-
tion only as it has historically existed in particular
company plants.
The Drivers' collective-bargaining agreement
with the Company is silent as to jurisdiction of the
work in dispute, and section 2, under "Occupation
Coverage," contains no language specifying that
the work belongs to employees it represents. Sec-
tion 2-H.1 reads in pertinent part: "Conditions and
methods of operation now prevailing in the respec-
tive mailrooms of the Publishers shall not be dis-
turbed insofar as they affect the jurisdiction of the
several unions operating in the mailrooms." This
provision fixes jurisdictional lines as they have tra-
ditionally existed at, in this instance, the Brooklyn
plant. Accordingly, we find that this factor favors
assignment of the disputed work to Drivers-repre-
sented employees.
2. Company preference and past practice
The Company has assigned the work to employ-
ees represented by Drivers, and the assignment is
consistent with longstanding practice at the Brook-
lyn plant. The Company prefers this assignment.
This factor therefore favors an award to employees
represented by Drivers.
3. Area and industry practice
No significant evidence was introduced at the
hearing establishing an area or industry practice for
the disputed work. Therefore, this factor does not
favor an assignment to employees represented by
either Union.
4. Relative skills
Because performance of the work requires no
special skills, this factor favors assignment neither
to Drivers-represented nor Mailers-represented em-
ployees.
5. Economy and efficiency of operations
The Brooklyn operation, unlike Manhattan's, ties
all bundles on the stacker lines. They are then
loaded and transported to delivery clerks for as-
signment. A clerk assigns the bundles to a route-
man, who cuts the tie on some of the bundles to
assemble his odds for that day's delivery. Assign-
ment of the disputed work to Mailers-represented
employees would require the Company to distin-
guish between bulk and odds bundles as the bun-
dles leave the lines to be loaded. Separation of bulk
and odds bundles at that juncture is unnecessary
and inefficient. Further inefficiency would result
from the Company's having to hire Mailers-repre-
sented employees to perform the work. As those
employees loaded and transported odds bundles to
the clerks, Drivers-represented employees would
have no work to do. Similarly, Mailers-represented
employees would stand idle while Drivers-repre-
sented employees loaded and transported bulk bun-
dles. Consequently, more employees would be
doing the same work currently performed by Driv-
ers-represented employees, and it would be done
less efficiently. Accordingly, we find that this
factor favors an award to employees represented
by Drivers.
6. Safety
Evidence was adduced that the rolling tables
sometimes cause hand and finger injuries. The
Company and the Drivers contend that the inci-
dence of such injuries would rise if the disputed
work were assigned to Mailers-represented employ-
ees, due to increased mailroom traffic. Because the
evidence in support of this contention is wholly
speculative, we cannot say that this factor favors
assignment of the work in dispute to employees
represented by either Union.
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 the collective-bar-
gaining agreement between the Company and the
Drivers, company preference and past practice, and
economy and efficiency of operation. In making
this determination, we are awarding the work to
employees represented by Drivers, not to that
Union or its members. The determination is limited
to the controversy that gave rise to this proceed-
ing.
309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 City and Vicinity are entitled to perform the
work of removing newspapers from nonautomated
stacker lines and delivering them on rolling tables
to employees who use the newspapers to make up
odd bundles at the Company's facility in Brooklyn,
New York.
310