Newspaper & Mail Deliverer's Union

National Labor Relations Board - Board Decisions

Jan 28, 1980

247 N.L.R.B. 609 (N.L.R.B. 1980)

NEWSPAPER & MAIL DELIVERERS' UNION
Newspaper & Mail Deliverers' Union of New York &
Vicinity and New York Times Newspaper Division
of the New York Times Co. and New York Mailers'
Union No. 6
New York Mailers' Union No. 6 and New York Times
Newspaper Division of the New York Times Co.
and Newspaper & Mail Deliverers' Union of New
York & Vicinity. Cases 2-CD-598 and 2-CD-599
January 28, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by New York Times Newspaper
Division of The New York Times Co., herein called
the Employer or the Times, alleging that Newspaper
& Mail Deliverers' Union of New York & Vicinity,
herein called the Drivers, and New York Mailers'
Union No. 6, herein called the Mailers, have violated
Section 8(b)(4)(D) of the Act.
Pursuant to notice, a hearing was held before
Hearing Officer James Wasserman on August 29 and
September 12, 1979.' All parties appeared and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to 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 and finds that they are free from prejudicial
error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board make the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer, with its principal place of business in New
York City, New York, is engaged in the business of
publishing The New York Times, a morning daily and
Sunday newspaper of general circulation. During the
past year, the Employer purchased goods from outside
the State having a value of $50,000. The parties also
stipulated, and we find, that the Employer is engaged
All dates herein are 1979.
The "status quo" arbitrator is provided for in the collective-bargaining
agreement between the Employer and the Mailers. His decision provides for
247 NLRB No. 80
in commerce within the meaning of Section 2(6) and
(7) of the Act and that it will effectuate the purposes
of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Newspaper
& Mail Deliverers' Union of New York & Vicinity and
New York Mailers' Union No. 6 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
Ill. THE DISPUTE
A. Background and Facts of the Dispute
In January the Employer began printing newspa-
pers for national and suburban distribution at its
Carlstadt, New Jersey, facility. After the newspapers
are printed, they are moved along conveyor belts,
known as press tying lines (PTL), stacked, wrapped,
tied in bundles, and ejected onto minirailroad cars.
They are ejected from the PTL by the bundle entry
device (BED). The bundles are then automatically
loaded on delivery trucks. The entire distribution
system is automated. However, two employees are
assigned to each PTL. One monitors the tying
machine and the other is stationed at the BED. The
latter insures that the bundles are correctly positioned
on the conveyor, and can stop the PTL and the BED
by pressing a button at his station.
On all "runs" designated for national or suburban
circulation, an employee represented by the Mailers is
stationed at the tying machine and an employee
represented by the Drivers is stationed at the BED.
However, on June 13 the Employer began printing
newspapers for city distribution, at which time it
assigned employees represented by the Drivers to both
stations. The Mailers filed a grievance contending that
during city runs an employee it represents should be at
the BED station in order to push the control buttons
which stop the BED and the PTL. The grievance was
presented to the "status quo" arbitrator' who directed
that an employee represented by the Mailers remain at
the tying machine, which conformed with the practice
on national and suburban runs. Thereafter, both
Unions informed the Employer that they would strike
if the work were not assigned to members they
represented. The Employer, on June 14, filed
8(b)(4)(D) charges alleging that the Mailers and the
Drivers had threatened to strike in order that the
disputed work be assigned to employees represented
by them.
an immediate, but temporary, resolution of the grievance. The Drivers was
not a party to the status quo arbitration proceeding.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Work in Dispute
The work in dispute is the operation of an auxiliary
control panel located at the bundle entry device during
the distribution of newspapers for city circulation at
the Employer's Carlstadt, New Jersey, facility.
C. The Contentions of the Parties
The Employer contends that the disputed work
should be assigned to employees represented by the
Drivers in accordance with the collective-bargaining
agreement, efficiency and economy, and area practice.
The Drivers points to the collective-bargaining agree-
ment, industry practice, safety and skill, shop condi-
tions, and the effects of automation in support of its
claim for the disputed work. The Mailers contends
that the work in dispute should be assigned to
employees it represents in accordance with the Em-
ployer's practice at its facility at 43d Street in New
York City and the collective-bargaining agreement.
D. Applicability of the Statute
The parties stipulated, and we find, that on June 13
the Mailers president, McDonald, warned the Times
that it would engage in a work stoppage unless the
work in dispute was assigned to employees it repre-
sented. Also on June 13, the Drivers president,
LaChance, threatened the Times with similar action
unless the disputed work was assigned to employees it
represented.
On the basis of the entire record, we conclude that
there is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that there is no
agreed-upon method for the voluntary adjustment of
the dispute within the meaning of Section 10(k) of the
Act. Accordingly, we find that this dispute is properly
before the Board for determination.
E. Merits of the Dispute
1. Collective-bargaining agreements
Both Unions have collective-bargaining agreements
with the Employer. The Mailers agreement is silent as
to the work in dispute. The Drivers collective-bargain-
ing agreement, however, states that the Drivers has
exclusive jurisdiction of the PTLs on all city circula-
tion runs. The PTL is defined as the area beginning
after the newspapers are stacked and continuing
through the bundle entry device. Additionally, negoti-
ators for the Drivers and the Employer testified that
this section was added to the Drivers agreement to
prevent employees represented by the Mailers being
stationed on the PTLs during city circulation runs.
We therefore find that this factor favors those employ-
ees represented by the Drivers.
2. Company and industry practice
All parties agree that, on city runs, bundled
newspapers must be handled by employees represented
by the Drivers. However, the Mailers primary claim
for the disputed work is based on the practice at the
Times' 43d Street facility. There, on city runs, an
employee represented by the Mailers is stationed along
the conveyor belt to count the bundles and insure that
the correct number is deflected to the delivery trucks.
The employee distributes the bundles by manipulating
deflectors which are located along the conveyor belt.
In effect, the Mailers is arguing that this function is
analogous to operating the switch located at the BED
station in Carlstadt and, therefore, an employee
represented by the Mailers should be assigned to that
station. We do not agree. At the Carlstadt facility the
distribution of the newspapers is entirely automated.
The bundles are automatically ejected onto the mini-
railroad cars and the correct number taken to the
delivery truck. While the control panel at the BED
station does, in the broadest sense, "control" the PTL,
it in no way controls the distribution of the newspa-
pers, which is preprogramed.
We find, as contended by the Drivers, and not
disputed by the Mailers, that the company and area
practice is for employees represented by the Drivers to
handle bundled newspapers on city circulation runs.
Stopping the PTL at the Carlstadt facility is only
ancillary to handling the bundles. We find, therefore,
that this factor favors those employees represented by
the Drivers.
3. Economy and efficiency of operation
As indicated earlier, if the Mailers prevails it will
require an additional employee at the BED station
solely to stop the PTL when directed to do so by an
employee represented by the Drivers. The order to
stop the PTL would only be given if the BED was
functioning improperly or the employee represented
by the Drivers felt it was necessary in order to safely
clear a jam. The operation, as contemplated by the
Employer, assigns the responsibility for stopping the
PTL to the same employee who is responsible for
seeing that the bundles are correctly positioned on the
PTL. And that employee is represented by the
Drivers.
Based on the foregoing, we find that the factor of
efficiency of operation favors those employees repre-
sented by the Drivers.
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NEWSPAPER & MAIL DELIVERERS' UNION
4. Employer preference
The Employer assigned the work of operating the
auxiliary control panel to employees represented by
the Drivers, and prefers they be awarded the work.
This factor favors an award to employees represented
by the Drivers.
Conclusion
Upon the record as a whole, and after full consider-
ation of all relevant factors, we conclude that employ-
ees who are represented by Newspaper & Mail
Deliverers' Union of New York & Vicinity are entitled
to perform the work in dispute. We reach this
conclusion relying on the Employer's preference and
assignment, the collective-bargaining agreements,
company and industry practice, and efficiency of
operation. In making this determination, we are
awarding the work in question to employees who are
represented by Newspaper & Mail Deliverers' Union
of New York & Vicinity, but not to that Union or its
members. The present determination is limited to the
particular controversy which gave rise to this proceed-
ing.
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:
1. Employees of New York Times Newspaper
Division of The New York Times Co. who are
represented by Newspaper & Mail Deliverers' Union
of New York & Vicinity are entitled to perform the
work of operating the auxiliary control panel during
the distribution of newspapers, destined for city
circulation, at the Employer's Carlstadt, New Jersey,
facility.
2. New York Mailers' Union No. 6 is not entitled,
by means proscribed by Section 8(b)(4)(D) of the Act,
to force or require New York Times Newspaper
Division of The New York Times Co. to assign the
disputed work to employees represented by that labor
organization.
3. Within 10 days from the date of this Decision and
Determination of Dispute, New York Mailers' Union
No. 6 shall notify the Regional Director for Region 2,
in writing, whether or not it will refrain from forcing
or requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disputed
work in a manner inconsistent with the above determi-
nation.
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