Newspaper & Mail Deliverers' Un of N. Y. & Vicinity

National Labor Relations Board - Board Decisions

Mar 4, 1969

174 N.L.R.B. 979 (N.L.R.B. 1969)

NEWSPAPER & MAIL DELIVERERS' UN OF N. Y. & VICINITY 979
Newspaper and Mail Deliverers ' Union of New York
and Vicinity and The New York Times Company
and New York Mailers ' Union No. 6, International
Typographical Union , AFL-CIO. Case 2-CD-377,
and 378
M arch 4, 1969
the policies of the Act to assert jurisdiction herein
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find that the
Mailers and the Deliverers are labor organizations
within the meaning of Section 2(5) of the Act.
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended,
following charges filed on June 27, 1968, and July 2,
1968, by The New York Times Company, herein
called the Employer, alleging that Newspaper and
Mail Deliverers' Union of New York and Vicinity,
herein called the Deliverers, had violated Section
8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring the Employer to assign the work in dispute
to employees represented by the Deliverers, rather
than to employees represented by New York
Mailers' Union No. 6, International Typographical
Union, AFL-CIO, herein called the Mailers.
Pursuant to notice, a hearing was held before
Hearing Officer, Arthur A. Herman on September
25, 1968. 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 The
Employer and the Deliverers have filed briefs which
have been duly considered.
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 these cases to a
three-member panel
Upon the entire record in these cases,' the Board
makes the following findings.
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and the record shows, that
The New York Times Company is engaged in the
publication of The New York Times It does a gross
annual business in excess of $1,000,000, 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
We find on the basis of the stipulation and record
that the Employer is engaged in commerce within
the meaning of the Act, and that it will effectuate
At the hearing , the parties stipulated to include as part of the instant
record, the 10(I) injunction proceeding before Judge Mansfield, District
Judge for the Southern District of New York
Ill. THE DISPUTE
A. Background
At issue in this proceeding are certain mailroom
duties involved in the preparation of Sunday editions
of The New York Times for delivery by mail to
individual subscribers residing outside the city of
New York. Specifically, the disputed work involves
the removal of head block labels used to designate
delivers areas, and the stacking operations
performed preparatory to the insertion of stacked
newspapers into the wire-tying machine
For many years, the Employer has utilized the
services of both mailers and deliverers in its
mailroom operations. The Employer maintains
separate conveyor systems for deliveries to
subscribers within the city of New York, and those
destined for delivery to individual subscribers
residing outside the city of New York Traditionally,
the geographical destination of the newspapers
determines the work assignment with employees
represented by the Deliverers performing most of
the job duties in connection with deliveries within
the city, while employees represented by the Mailers
exercise like responsibilities with respect to deliveries
to subscribers outside the city of New York.
The preparation of Sunday editions for delivery to
out-of-town subscribers has varied somewhat over
the years. Prior to 1960, these newspapers were
individually wrapped and tied by mailers, either
manually or with the use of a wire-tying machine.
Papers directed to more than one subscriber in the
same locality were stacked into bundles and each
bundle was wrapped and tied. After completing the
tying operations, the mailers turned the newspapers
over to the deliverers who deposited them into mail
sacks preparatory to delivery to the Post Office. In
1960, the Employer automated its delivery process
by the introduction of an automatic polyethylene
machine. Under the new system, each Sunday
edition destined for delivery to an individual
subscriber outside New York City was fed into a
polyethylene machine which enclosed the newspaper
in a polyethylene bag, sealed the bag and by means
of a labeling head attached to the machine, affixed a
mailing label to the bag. The labels designating
subscribers in a particular locality were run in
sequential order and upon completion of that series,
a blank label, referred to as a head block label
would be automatically affixed to the next paper,
thus indicating the beginning of a new series After
removal of the head block label copies, usually by a
174 NLRB No. 142
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mailer, the newspapers were carried by conveyor to
a mailroom table, where they were deposited
together with a designation tag prepared by an
employee represented by the Mailers. The deliverers
would then scoop the newspapers from the table into
mail sacks, attach the appropriate designation tag;
and deliver the mail sacks to U. S. Post Office mail
trucks This system of delivery continued in effect
until 1967 when a change in U. S. Postal regulations
caused the Employer to modify its procedures.
Under the new regulations, the Employer was
required to use zip code designations in its mailings,
and as a result, a separate mail sack had to be
provided for each zip code number used. Because
this made the use of mail sacks impractical, the
Employer conferred with U. S. Postal authorities
and received permission to replace the mail sacks
with a wire-tying operation.
Thereafter, the Employer continued to employ the
same delivery procedures as before, except that a
wire-tying machine was substituted in place of the
mail sacks. After the Employer assigned the
operation of the wire-tying machine to an employee
represented by the Mailers, the Deliverers protested
the elimination of mail sacks and requested that the
matter be referred to arbitration. Pursuant to this
request, an arbitration proceeding was conducted
and an award rendered finding that the Employer
had the right to discontinue the use of mail sacks,
but that the work involved in the operation of the
wire-tying machine must be assigned to an employee
represented by the Deliverers The Mailers were not
a party to the arbitration, nor did they participate in
the proceeding. In accordance with the arbitration
award, the Employer reassigned the operation of the
wire-tying machine to an employee represented by
the Deliverers. Upon being informed of this action,
the Mailers threatened the Employer with a work
stoppage, if the mailers were not permitted to
perform this work. As a result of the Mailer's
action, the Employer filed a charge under Section
10(k) of the National Labor Relations Act and on
May 28, 1968, the Board issued its Decision and
Determination of Dispute' in which it resolved the
dispute by awarding the work of tying Sunday
editions of The New York Times for delivery by
mail to locations outside New York City to
employees represented by the Mailers.
The instant dispute over the stacking operation
and the removal of head block labels arose following
the Board's determination of the wire-tying dispute
On June 15, 1968, the Employer was engaged in the
preparation of its Sunday editions for delivery by
mail to out-ol-town subscribers, and as part of the
process, an employee represented by the Mailers
was stacking the newspapers prior to their insertion
into the wire-tying machine. It is undisputed that on
this occasion, the Deliverer's representative Douglas
LaChance caused a work stoppage because the
Employer would not assign a member of the
Deliverers to perform the work of stacking the
newspapers prior to their insertion into the
wire-tying machine As a consequence of this action,
the Employer removed its wire-tying machine and
reverted to the use of mail sacks On June 29, 1968,
when the Employer was again engaged in the
preparation of its Sunday editions for delivery by
mail to subscribers outside New York City,
Deliverer's representative LaChance demanded that
the Employer assign the work of removing head
block labels to employees represented by the
Deliverers. When the Employer refused to replace
the mailer who was performing this work with a
deliverer, LaChance ordered the deliverers who were
scooping the newspapers into mail sacks to cease
work. Thereafter, pursuant to a 10(1) injunction
proceeding, the Deliverers were enjoined from
further action in support of these work demands,
pending the Board's disposition of this dispute
B. The Contentions of the Parties
The Deliverers contend that their members have
in the past performed the work of removing head
block labels and that the stacking involved in the
operation of the wire-tying machine is similar to the
stacking performed by deliverers in connection with
scooping the newspapers into mail sacks Also in
support of their claim to the disputed work, the
Deliverers rely upon their collective-bargaining
agreement with the Employer
The Employer and the Mailers contend that
employees represented by the Mailers are entitled to
perform the disputed work based upon past practice,
and the historical division of work in the Employer's
mailrooms. They also contend that the Board's prior
determination of the wire-tying dispute' is
dispositive of the work jurisdiction issues presented
here because in making its Award, the Board
recognized and gave effect to the established
practice of assigning to mailers, all work up to and
including wire-tying in connection with the delivery
by mail of Sunday edition newspapers to subscribers
outside New York City
C. The Applicability of the Statute
Before the Board proceeds with a determination
of dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to
believe that Section 8(b)(4)(D) of the Act has been
violated As stated, above, the uncontroverted
record testimony establishes that the Deliverers
engaged in work stoppages on June 15, 1968, and
June 29, 1968, in support of their claims to the work
in dispute Accordingly, we find, on the basis of the
entire record, that there is reasonable cause to
believe that a violation of Section 8(b)(4)(D) has
The New York Times Company. 171 NLRB No 119 1171 NLRB No 119
NEWSPAPER & MAIL DELIVERERS' UN. OF N. Y. & VICINITY
occurred and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.
D The Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various relevant factors
E. Conclusions as to the Merits of the Dispute
Our determination of the merits of the dispute is
based upon a consideration and evaluation of all
relevant factors. However, we should point out
initially, that several of the factors normally relied
upon by the Board are of no assistance in resolving
the issues presented here. For example, there are no
Board certifications covering the disputed work; no
special skills are required to perform the work; and
industry or area practices are not urged by any
party in support of its position. We also find that
the Deliverer's and the Mailer's respective
collective-bargaining agreements with the Employer
offer no assistance in resolving the competing claims
because neither contract makes specific reference to
the disputed work.' Nor are we able to accept the
Mailer's contention that our prior Award with
respect to the wire-tying dispute is dispositive of the
work jurisdiction issues presented here, for it is clear
that our prior Decision and Determination of
Dispute6 was limited to and resolved only the
question as to which group of employees was
entitled to perform the wire-tying work in dispute
On the basis of the record before us, we are
constrained to conclude that the Employer's
assignment of the disputed work to employees
represented by the Mailers is in accordance with
past practice and the historical division of fob duties
in the Employer's mailrooms, and that the parties
have failed to demonstrate the existence of any
other relevant factors which would assist us in
making our determination. Under the established
lines of jurisdiction in effect in the Employer's
mailroom operations, work assignments are
predicated upon the geographical destination of the
newspapers with mailers exercising general
responsibility for the preparation of newspapers for
delivery by mail to individual subscribers residing
outside New York City, and deliverers performing a
like function with respect to local deliveries. In
'International Association of Machinists , Lodge 1743, AFL-CIO (J A
Jones Construction Co I. 135 NLRB 1402
'Contrary to the contention of the Deliverers , we find no basis tot
concluding that section 2-A of its collective- bargaining agreement can be
said to extend coverage over the stacking operation in dispute here
1171 NLRB No 119
981
observance of these practices, mailers have been
assigned all job duties up to and including wire-tying
in connection with out-of-town deliveries, including
the removal of head block labels and the stacking
operation performed preparatory to inserting the
newspapers into the wire-tying machine. Although,
the deliverers may on occasion remove a head block
label or perform a stacking function similar to the
stacking work in dispute, here, it is clear that with
respect to these out-of-town deliveries, the deliverers
exercise no job responsibilities prior to the
wire-tying or mail sack operations, and that the
disputed work has at all times been assigned to and
performed by employees represented by the Mailers.
On the basis of this record, we see no reason for
disturbing such long established work practices and
accordingly, we find that the work in dispute is
properly assigned to employees represented by the
Mailers. Our present determination is limited to the
particular controversy which gave rise to this
proceeding. In making this determination, we are
not assigning the disputed work to the Mailers or to
that Union.
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 these
cases, the National Labor Relations Board makes
the following Determination of Dispute-
1. Employees represented by New York Mailers'
Union No. 6, International Typographical Union,
AFL-CIO, and employed by The New York Times
Company are entitled to perform the duties of
removing head block label newspapers and stacking
prior to insertion of the newspapers into the
wire-tying machine when such duties are performed
in connection with the preparation of Sunday
editions of The New York Times for delivery by
mail to individual subscribers residing outside the
city of New York.
2. Newspaper and Mail Deliverers' Union of New
York and Vicinity is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require The New York Times Company, to
assign the above-described work to deliverers
represented by that Union.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Newspaper and Mail
Deliverers' Union of New York and Vicinity shall
notify the Regional Director for Region 2, in
writing, whether or not it will refrain from forcing
or requiring The New York Times Company, by
means proscribed by Section 8(b)(4)(D) of the Act,
to assign the work in dispute to deliverers rather
than to mailers employed by The New York Times
Company.