Newspaper & Mail Deliverers' of New York & Vicinity

National Labor Relations Board - Board Decisions

Mar 7, 1975

216 N.L.R.B. 941 (N.L.R.B. 1975)

NEWSPAPER & MAIL DELIVERERS' OF NEW YORK & VICINITY
Newspaper and Mail Deliverers ' Union of New York
and Vicinity and The New York Times Company
and New York Mailers' Union No. 6, ITU, AFL-
CIO. Case 2-CD-478
March 7, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended,
following the filing of a charge on August 28, 1974,
and a first amended charge on August 29, 1974, by
The New York Times Company, herein called the
Employer, against Newspaper and Mail Deliverers'
Union of New York and Vicinity, herein called
Drivers, alleging that it had violated Section
8(b)(4)(ii)(D) of the Act by threatening certain
proscribed activity with the object of forcing the
Employer to assign work in dispute to it rather than
to New York Mailers' Union No. 6, ITU, AFL-CIO,
herein called Mailers . Pursuant to a notice of
hearing, a hearing was held before Hearing Officer
Mary W. Taylor on October 1, 1974. All parties
appeared and were afforded full opportunity to be
heard, examine and cross-examine witnesses, and
adduce evidence bearing on the issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and fords that they are
free from prejudicial error . They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The New York Times Company is engaged in the
publication of The New York Times. It does a gross
annual business in excess of $1 million, annually
receives goods valued at more than $50,000 from
outside the State of New York, holds membership in
interstate news services , and advertises nationally
sold products.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find, that the
Mailers and the Drivers are labor organizations
within the meaning of Section 2(5) of the Act.
216 NLRB No. 163
III. THE DISPUTE
941
A. Background and Facts
Prior to August 1974, the Employer printed almost
all of its Sunday edition at its West Side plant
(located on West End Avenue). The Sunday edition
was then collated and inserted there and made ready
for delivery. In late August 1974, the Employer
discontinued printing at the West Side plant and now
all the Sunday edition is printed at its plant on West
43rd Street (its principal location). Much of the paper
is bundled and strapped onto skids and shipped by
truck to the West Side plant to be stored for collation
and insertion before being readied for delivery. This
shift in operations resulted in the dispute herein.
Since the change in operation, various sections of
the Sunday Times which are printed in advance
during the preceding week at 43rd Street are trucked
to the West Side plant and placed in storage areas to
await insertion. The resort section is printed and
moved on Tuesdays, the drama section on Wednes-
days and Thursdays , real estate on Friday during the
day, financial section Friday night, and classified on
Saturday. The main news section, sports section, and
news of the week of necessity are not printed until
Saturday night. The magazine and book review
(tabloid size) sections are printed by a subcontractor
and are delivered to the West Side plant and stored,
as are advertising stuffers, etc. These items, with the
earlier printed sections, are delivered before Saturday
night to newsdealers who then add the Saturday
night printed sections before delivering the complet-
ed paper.
The parties stipulated that on Tuesday, August 27,
1974, the Employer assigned to the Drivers the work
of moving the strapped skids containing the resort
section (referred to as uninserted product), by truck
from the 43rd Street plant to the West Side plant,
and there off-loading them and moving them by
forklift or walkjack to storage areas. Also on
Tuesday, August 27, George McDonald, president of
the Mailers, complained that the work of moving this
product should have been assigned to the Mailers
and invoked the contract procedure for immediate
arbitration. An arbitration was held that night,
August 27, with representatives of the Employer and
the Mailers present. The Drivers was not present and
did not participate. The arbitrator's award was that
the Employer did not have the right to assign the
work to other than the Mailers. Thereafter, pursuant
to this award, the Employer assigned the work to the
Mailers . On August 28, Carl Levy, president of the
Drivers, informed the Employer that his Union
disputed this reassignment and made it clear that if
the work were not assigned to the Drivers his Union
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would engage in a work stoppage . The charge was
filed immediately thereafter. The Drivers has not
called a work stoppage during the pendency of the
instant case.
B. The Work in Dispute
The work in dispute is the moving of the strapped
skids containing the uninserted sections of the
Sunday Times to storage at the West Side plant.
Mailers does not claim the work of unloading the
skids from the trucks onto the docks, but maintains
that drivers should unload and place skids just inside
the mailroom and at that point mailers should pick
them up and move them to the storage area. There is
no dispute about the moving of the skids at the 43rd
Street plant. There is further no dispute about the
moving of strapped skids containing the magazine
and book review sections to storage, which is done
by drivers.
C. Contentions of the Parties
Drivers contends that this type of work has always
been its and thus should be assigned to it in this case.
Mailers claims that, because the complete flow of
the paper has always been within its jurisdiction, the
changes in , operations should not interfere with its
right to the work.
The Employer contends that the disputed work
should be assigned to Drivers for reasons of
efficiency and economy as well as past practice and
contract jurisdiction.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to
believe that Section 8(bX4)(D) has been violated.
The record, including the stipulation of the parties,
discloses that following the reassignment of the work
in dispute to employees represented by the Mailers
representatives of the Drivers threatened the Em-
ployer with a work stoppage if the work in dispute
was not reassigned again back to the Drivers.
Therefore, we are satisfied that there is reasonable
cause to believe a violation of Section 8(bX4XD) has
occurred and that the dispute is properly before the
Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to the various relevant
factors.
1. Certification and collective-bargaining
agreements
There is no evidence that a Board certification
covers the work in dispute.
Although the contracts between the Employer and
Drivers and the Employer and Mailers are in
evidence, we find, in light of the dispute having
arisen because of a change in operation, that they are
not useful in making our determination.
2. Employer and area practice
The parties agree that procedures used by other
newspapers in the area were different and not
relevant to this case.
According to the Employer, incoming skids have
always been assigned to the Drivers. Carl Levy,
president of Drivers, testified that his union members
always had jurisdiction of moving tied or strapped
products. Douglas Chance, business agent of Drivers,
also testified that Drivers had jurisdiction over tied
products coming in and out of any plant.
However, George McDonald, president of Mailers,
testified that members of Mailers had jurisdiction
over the handling of the complete flow of the Sunday
paper. Edward Burke, chapel chairman of Mailers,
agreed that Mailers was entitled to the work.
3. Employee skills and efficiency of
operation
The record indicates that both groups of employees
possess the necessary skills to perform the work in
dispute.
However, in terms of efficiency, the record indi-
cates that it is more efficient to use members of
Drivers to perform the work. John Murphy, pro-
duction manager of the Employer, testified that it
was more efficient to have members of Drivers, who
deliver the skids to the West Side plant, place the
skids in the storage area at the West Side plant.
When the Employer, subsequent to the arbitration,
assigned this work to members of Mailers, extra men
had to be hired. The Employer had not found it
necessary to hire extra members of Drivers when
they were performing the work in dispute.
4. The decision of the arbitrator
Because the arbitration was bipartite, involving
only the Employer and Mailers , we conclude that the
arbitrator's decision is not dispositive of the issue
before us.
NEWSPAPER & MAIL DELIVERERS ' OF NEW YORK & VICINITY 943
Conclusions
Having considered all pertinent factors present
herein, we conclude that employees who are repre-
sented by Drivers are entitled to perform the work in
dispute. This assignment is consistent with the
Employer's initial assignment and efficiency of
operation. In making this determination, we are
awarding the work in question to employees repre-
sented by Drivers, but not to that Union or its
members . This determination is limited to the
particular controversy giving rise to this dispute.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
Employees represented by Newspaper and Mail
Deliverers' Union of New York and Vicinity are
entitled to perform the work of moving the strapped
skids containing the uninserted sections of the
Sunday Times to storage at the West Side plant.