Newspaper & Mail Deliverers' Union, New York

National Labor Relations Board - Board Decisions

Jul 18, 1962

137 N.L.R.B. 1435 (N.L.R.B. 1962)

NEWSPAPER & MAIL DELIVERERS' UNION, NEW YORK 1435
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
the case, the Board makes the following Determination of Dispute
pursuant to Section 10(k) of the Act:
1. Employees engaged as electricians, currently represented by
Local Union No. 262, International Brotherhood of Electrical Work-
ers, are entitled to operate power-driven drilling and hoisting equip-
ment for Nichols Electric Company at the Spruce Run Dam project,
Clinton, New Jersey.
2. Local Union 825, International Union of Operating Engineers,
AFL-CIO, is not entitled by means proscribed by Section 8(b)
(4) (D), to force or require Nichols Electric Company to assign the
work of operating such power-driven drilling and hoisting equipment
to employees engaged as operating engineers, who are currently rep-
resented by Local Union 825, International Union of Operating
Engineers, AFL-CIO.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Local Union 825, International Union of Operating En-
gineers, AFL-CIO, shall notify the Regional Director for the Twenty-
second Region, in writing, whether or not it will refrain from forcing
or requiring Nichols Electric Company by means proscribed by Section
8('b) (4) (D) to assign the work in dispute to Operating Engineers
rather than Electricians.
Newspaper and Mail Deliverers ' Union of New York and Vicinity,
Independent and The New York Times Company
New York Mailers' Union No. 6, International Typographical
Union , AFL-CIO and The New York Times Company. Cases
Nos. 2-CD-196 and 2-CD-197. July 18, 1962
DECISION AND DETERMINATION OF DISPUTE
This is a consolidated proceeding under Section 10 (k) of the Act fol-
lowing charges filed by The New York Times Company, herein called
the Company. One of the charges is against Newspaper and Mail
Deliverers' Union of New York and Vicinity, Independent, herein
called the Deliverers, and alleges that that Union engaged in illegal
conduct with respect to the Company and its employees in order to
force a change in work assignment as between members of the Deliv-
erers and members of New York Mailers' Union No. 6, International
Typographical Union, AFL-CIO, herein called the Mailers. The
other charge, against the Mailers, involves the same work dispute and
alleges that the Mailers engaged in like illegal conduct for the purpose
137 NLRB No. 157.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of forcing the Company to assign the work to members of the Mailers
instead of to members of the Deliverers. A duly scheduled hearing
was held before Allen H. Randall, hearing officer, on November 15
and 18, 1960. 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 hear-
ing officer made at the hearing are free from prejudicial error and are
hereby affirmed. Briefs filed by the parties have been considered.
Upon the entire record in the case, the Board makes the following
findings :
1. The Company is the publisher of The New York Times and
operates two plants in New York City; its newspapers are sold both
within and without the State of New York. The Company's gross
revenues during the past year were in excess of $1,000,000. We find
that the Company is engaged in commerce within the meaning of the
Act and that it will effectuate the policies of the Act to assert juris-
diction herein.
2. The Deliverers and Mailers are labor organizations within the
meaning of the Act.
3. The dispute :
A. The work in dispute
The disagreement which gave rise to this proceeding arose in the
mailroom of the Company's West End plant in New York City. News-
papers come from the presses to a press delivery table located in the
mailroom. On each side of this table stands an employee represented
by the Mailers, whose function is to place newspapers in stacks or
multiples of 25 on the Wallastar conveyor belt adjacent to the table.
The mailer then hits a hip switch or stack starter, activating the con-
veyor which then carries the papers a few feet to a bottom wrapping
machine, called a star wrapper, which is operated by another mailer.
The star wrapper places a bottom wrapper under each stack, which
then proceeds further along the belt to a Wallastar tying machine
where it is mechanically tied. The tying machine is sometimes oper-
ated by a mailer and sometimes by a deliverer employee, the latter
represented by the Deliverers' Union. From the tying machine bundles
continue on successive conveyor belts to the delivery trucks.
As the stacks of newspapers move along on the Wallastar conveyor
belt the few feet between the stack starter and the star wrapper ma-
chines, it is sometimes necessary to straighten or "jog" the stacks so
that they do not sag and so that no inserts will fall out. This is a
matter of patting the sides of the bundles by hand and the totality of
the work dispute in this case is limited to this single occasional chore.
Moreover, the dispute is further confined to such times as a deliverer
is stationed at the tying machine; it is conceded by all parties that
when a mailer operates the tying machine, a mailer may also do the
NEWSPAPER & MAIL DELIVERERS' UNION, NEW YORK 1437
jogging or hand patting. Both the mailers and deliverers claim they
are entitled to hand pat the bundles when a deliverer works the tying
machine.
B. Evidence of illegal conduct
The Wallastar conveyor belt system with its tying machines was
installed in the West End plant when it opened in July 1959. There
are nine of these and several are used three or more nights weekly
to handle newspapers for city delivery. Under a long-established
practice of work assignments, now not in dispute, when newspapers
are being tied for "city" delivery, a deliverer operates the tying ma-
chine; when the papers are destined for "suburban" delivery, a mailer
works at that machine. There have been instances when this exact
arrangement was not followed, but they have been infrequent, not very
substantial, and of no material bearing upon the underlying issue
presented for our determination.
On the evening of September 2, 1960, deliverers were at the tying
machine working on papers for city delivery and mailers were doing
the "jogging" or straightening out of bundles as they moved along
the conveyor belts. Bonagura, the Deliverers' business agent, com-
plained to Plant Manager Rogers and said that the work belonged to
deliverers; he added that unless the mailers were told to stop doing
it, he would not permit his men to tie the bundles. The mailers con-
tinued to jog for several minutes, whereupon Bonagura approached
the man on the No. 3 Wallastar tying machine and said something to
him ; at that moment the operator shut off his machine.
Rogers then instructed Kenneweg, mailroom foreman of the West
End plant, to tell the mailers to stop straightening out the bundles.
When Rogers told Bonagura of his changed instructions, the latter
requested his men to start the tying machine again. Within 5 minutes,
however, the mailers resumed their jogging and again Bonagura
walked over to his man on the No. 3 machine, and again this one was
turned off. Soon two other tying machines, operated by deliverers,
were shut down by their operators without orders from management.
When the No. 3 machine was shut down the second time, McDonald,
business agent, and Perota, chapel chairman, both of the Mailers'
Union, spoke to Rogers. According to Rogers' testimony, McDonald
said that the instructions to mailers to discontinue jogging was a vio-
lation of the Company's agreement with the Mailers and that he would
shut down the machines if mailers were not permitted to resume the
work. At this point, Rogers, followed by McDonald, went to his office
and called Industrial Relations Manager Hulsart. Still according to
Rogers, McDonald again threatened to close down the machines unless
mailers were assigned to do the disputed hand patting of the bundles.
Later that same evening company officers met with representatives
of both Unions several times in an effort to settle the argument. At
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one meeting, as Rogers testified , McDonald repeated his threat that
unless mailers were permitted to do the jogging , he could not permit
the inserting machines to operate . At one of the meetings , Rogers
also told Bonagura that in his opinion the work belonged to the mail-
ers. Bonagura disagreed , and insisted that the machine could not be
operated on that basis.
Between September 2 and about November 7, 1960 , when a tem-
porary restraining order was issued by the Federal district court, the
Wallastar conveyor machines remained idle. Whenever newspapers
were being handled for city deliveries , the papers were tied instead
by hand as they had largely been before the advent of the machine.
The additional labor cost to the Company during this period was
about $2,000 weekly.
C. Contentions of the parties
The Company, which filed both charges, contends that the mailers
are entitled to the work in dispute, that it has assigned it to them and
wishes to continue to do so, and that the record as a whole supports its
position. It asks the Board to make an affirmative award to this group.
In its briefs, the Respondent Deliverers concedes that this is a clear
jurisdictional dispute between the two Unions. It argues, however,
that its contract with the Company, viewed in the light of past prac-
tice and other evidence, constitutes a contractual award of the work
by the Company in favor of deliverers, and that this asserted fact is
a complete defense to the charge against it. It contends that the
Board should award the work accordingly.
The Respondent Mailers urges that the notice of hearing be quashed
on the grounds that it does not adequately describe the "threat" with
which that Union is charged, that the parties have agreed upon a vol-
untary method of adjustment of the dispute, and that the record
does not reveal any threat by its agents against the Company. It would
construe the evidence as showing only that its business agent expressed
a prediction that his members might refuse to work in protest against
a contract violation by the company representatives. The Mailers
advances the further contention that if there was a threat, it could not
have had the unlawful object of forcing an assignment of work in
favor of mailers because the work had already been assigned to them
and they were in fact doing it.
D. Applicability of the statute
With respect to the activities charged against the Respondent De-
liverers we find that there is reasonable cause to believe that through
its agent, Bonagura, that Union has engaged in conduct violative of
Section 8(b) (4) (D) of the Act. He told Plant Manager Rogers that
deliverers were entitled to the disputed work, and Rogers' uncontra-
NEWSPAPER & MAIL DELIVERERS' UNION, NEW YORK 1439
dieted testimony reveals that the business agent expressly stated he
would not permit his members to tie bundles if mailers continue to do
the jogging. In a matter of minutes, deliverers twice shut down their
;'machines and stopped the entire mailroom operation, exactly as
Bonagura had announced.
We reject the Respondent Mailers' request that the notice of hearing
be quashed as to that Union because it does not spell out the threat
alleged. The notice expressly refers to the charge attached, which in
turn sets out the Mailers' threat to force the Company to assign the
work to its members. Moreover, McDonald, who allegedly voiced the
threat, called as a witness by the Mailers, testified fully at the hearing
on that very subject.
We find equally without merit the Mailers' contention that there is
no evidence of proscribed conduct by McDonald in the entire record.
Plant Manager Rogers testified unequivocally that in three separate
conversations on September 2, he heard McDonald threaten a work
stoppage if the disputed work were not assigned to mailers. While
McDonald's version of these conversations varied somewhat with that
of the plant manager, he did not precisely deny having made the
threats. According to the business agent's testimony, on the first oc-
casion he advised Rogers that he would invoke the grievance procedure
under the contract. As to the second talk, he testified that he told
Rogers that if the work were not reassigned to the mailers, he, McDon-
ald, was not sure he would be able to keep the mailers working
on the machines because they had seen what had gone on and were
aware of their contractual rights. McDonald continued to recall that
in the third conversation Hulsart asked him if he was going to "strike"
the Company, and that his reply was that Hulsart was playing with
words, that Hulsart could call it a strike if he wanted to, but that under
any circumstances McDonald would be hard pressed to hold his men
in line because the mailers knew their rights under the contract.
As to the object of McDonald's threat and the cessation of work by
the mailers which then ensued, the record as a whole also supports a
reasonable inference that it was to force the Company to assign the
jogging work to the mailer group of employees on all occasions when
city deliveries were being handled and to discontinue any past practice,
however sporadic and small, of giving it to the deliverer group instead.
It is true that when the events of September 2 began to unfold, the
work had been assigned to mailers and that when McDonald made his
threat the work had only been taken away from them and not in fact
assigned to the deliverers. We cannot for this limited reason, however,
view the controversy as no more than a desire by McDonald to restore
the immediate status quo of the preceding moment and nothing more.
On a number of occasions the Company had yielded to similar impor-
tunings of the Deliverers' Union and in like fashion had told the mail-
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers to discontinue the jogging; indeed, more than once the work had
even been assigned to deliverers to quiet their discontent, albeit for
brief periods. On September 2, as well as after the hearing, the Mail-
ers' representative made it quite clear that his claim for the work covers
each and every instance when papers are tied for city delivery. In
these circumstances, we find without any necessity for making defini-
tive resolutions of conflicting testimony, that there is reasonable cause
to believe that the Respondent Mailers also engaged in conduct viola-
tive of Section 8(b) (4) (D) of the Act, as alleged in the charge.
The Mailers' final contention, that there exists an agreed-upon
method for voluntary adjustment of the dispute, rests upon the fact
that its contract with the Company contains an arbitration clause.
Arbitration under that agreement would bind only the contract parties
and would leave the Deliverers' Union unaffected. It could not, there-
fore, be viewed as a voluntary method of adjustment under Section
10 (k) of the Act.'
E. Merits of the dispute
It could hardly be claimed, and no one attempts to argue, that to
straighten out bundles of newspapers requires the slightest skill or ex-
perience. There only arises occasion to jog or pat the bundles at that
point of the conveyor system between the stack starter and the star
wrapper machine. Both the starter and wrapper are almost always
operated by mailer employees who stand near them no matter where
the newspapers are to be delivered. And it is only when the papers
being tied are to go to city areas that deliverers operate the Wallastar
tying machine at the end of the line; otherwise, that operation too is
a function of the mailers group. Thus the Company's decision to have
mailers do the hand straightening of bundles at all times served to
give continuous, smooth,,and integrated control of the entire conveyor
belt to a single group and avoided any artificial placement, in the midst
of mailers, of an employee from the deliverer group to perform only an
occasional and completely unskilled chore. In the total picture such
assignment, which the Company desires to continue, appears perfectly
sensible and correct.
To give logic and legal basis to their conflicting claims the Unions
point to their respective bargaining agreements with the Company and
each of them also insists that the past practice of assignments on the
Wallastar machine as well as with respect to predecessor tying devices,
supports its contract contention. Unquestionably, contract provisions
and evidence of past practice, both in the company involved and in the
industry, are material considerations to be weighed in making affirma-
I New York Mailers' Union No. 6, International Typographical Union, AFL-CIO (The
New York Times Company), 137 NLRB 665.
NEWSPAPER & MAIL DELIVERERS' UNION, NEW YORK 1441
tive work awards in these proceedings? Particularly are these factors
pertinent where, as in this very case, the equally relevant elements of
comparative skill, experience requirement, and traditional jurisdic-
tional claims are totally lacking. The union contracts in this case,
however, are imprecise in their pertinent clauses, and the past prac-
tice in the Company's assignment of the disputed work has not been
sufficiently consistent to furnish solid grounds now for a positive
award either way.
The first Wallastar conveyor belt arrangement was installed at the
Company's 43d Street plant in February 1958. Nine others were
placed at the West End plant in July 1959. Rogers, plant manager at
West End, testified that mailers performed the disputed work at his
plant from the time the new machine arrived clear up to September
1960, when the dispute erupted into a work stoppage. Barnett,
general foreman of delivery over both plants, was called as a witness
by the Deliverers' Union and said that usually a deliverer did this
work, although mailers had also performed it. There were other
witnesses called by the Mailers' Union who corroborated the testimony
of Rogers, and said that mailers had been doing the work at both
locations. In turn, further witnesses for the Deliverers' Union added
that on a number of occasions that Union had protested assignment to
mailers and had succeeded in prevailing upon management, at least for
the moment, to order them to stop straightening out the bundles. If
the conflicting testimony be considered generally, it lends greater sup-
port to the contention of the mailers on past practice, than it aids the
argument of the deliverers.
As to the contract covering the separate groups of competing em-
ployees, the particular clauses urged upon us as dispositive of the
question are at best ambiguous and therefore of little aid in reaching
a definitive determination. The Deliverers' contract recognizes the
jurisdiction of that Union over the work of "handling . . . all papers
for New York City delivery." If the only "handling" of papers in
the mailroom consisted of the jogging and hand patting which is in
dispute, the contract might clearly cover it. But in the handling of
these same papers for city delivery there are mailers who stack them
by hand as they reach the mailroom, mailers who operate the stack
starter, and mailers who place wrappers under each bundle at the star
wrapper machine. Their right to continue to do this "handling" of
the papers is not disputed, and no claim is made that the Deliverers'
contract is to be read as covering such work also.
Apart from its written contract, the Deliverers proved that in early
1958, when the first Wallastar conveyor belt was installed at the 43d
2 International Association of Machinists, Lodge No 1748, AFL-CIO (J. A. Jones Con-
struction Company), 135 NLRB 1402.
649856-63-vol. 137-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Street plant, Hulsart, the company industrial relations manager,
agreed that deliverers would do the jogging for city deliveries. This
conversation is said to reflect an "oral agreement" or an admission by
the Company that the Deliverers' contract does apply to the undis-
puted work. As the Deliverers' contract was renewed after this inci-
dent without change in the pertinent language, the oral agreement
argument loses persuasion . And the fact that mailers continued to do
the work thereafter, apparently to a greater extent than did the de-
liverers, indicates strongly that Hulsart's statement to the Deliverers'
Union back in 1958 was intended as no more than a temporary ar-
rangement to buy peace at the moment. Indeed, the incident seems to
have been no different from several others which followed, when the
Company yielded to the demands of that Union at one moment only
to revert again to the practice of permitting mailers to do the work
instead.
In its contract with the Mailers ' Union, the Company agreed that
"the jurisdiction of the Union heretofore recognized shall be pre-
served." This Union's "jurisdiction," as it might extend to the work
here in dispute, is not clearly explicated, either in the contract itself or
by any evidence of record. There is no proof as to practice in the as-
signment of this precise work elsewhere in the industry. The contract
does say that the mailers work includes "passing publications to city
delivery." A literal reading of this language sets it in direct conflict
with the counterpart clause in the Deliverers' contract. In any event,
in this situation the word "passing," like the word "handling," is at
best ambiguous. After the mailers last touch the papers at the star
wrapper machine, they continue along on the conveyor to a point where
deliverers tie them in the Wallastar tying machine. This last is also a
"passing" function, and like the further passing of the papers out of
the mailroom to the trucks for delivery, it is regularly performed by
deliverers with no claim by the mailers that the work belongs to them.
Thus the contracts, like evidence as to past practice, are of little
significance in this case. In its brief the Mailers' Union advances
various arguments based on a "status quo" provision in its contract;
this is a clause saying that "in the event of `controversies' or 'dis-
putes,' or `differences,' conditions existing prior to the dispute shall
be continued." This contract language clearly pertains to procedural
arrangement between the parties, and cannot be read as intended to
decide the merits of any "controversy," or to constitute an affirmative
assignment of work. In any event, the dispute in this instance was
far broader than the immediate "status" on September 2, 1960, and
it is the underlying dispute which it is our duty to resolve in this
proceeding 3
8 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, 584.
NEWSPAPER & MAIL DELIVERERS' UNION, NEW YORK 1443
With all these factors-contracts and past practice-as well as the
usual skill and experience elements, giving little or no support to the
claims of either the Mailers or the Deliverers, the remaining pertinent
considerations of the Company's desire and convenience, as well as the
logic and good sense of the assignment it has made, appear as very
persuasive. On the entire record, therefore, we believe that mailers
are entitled to the work in dispute. While no particular skills are re-
quired to perform it, the work falls in an area of the conveyor belt now
normally under the complete jurisdiction of the mailers on both city
and suburban deliveries; although no formal assignment has been
made by the Company to them, it appears that mailers straighten
papers bound for city delivery more frequently than do deliverers.
The Company now favors a formal assignment to them and there is
no evidence that such a Board award would be inconsistent with any
industry practice.
Accordingly, we shall determine the dispute by deciding that mailers
rather than deliverers are entitled to do the work of straightening
stacks of newspapers bound for city delivery on the Wallastar con-
veyor belt whenever a deliverer is operating the Wallastar tying ma-
chine. Our present determination is limited to the particular con-
troversy which gave rise to these proceedings. In making this de-
termination, we are assigning the disputed work to mailers, who are
represented by the Mailers' Union, and not to the Deliverers' Union
or to its members.
In view of the above, we find that the Deliverers' Union is not en-
titled by means proscribed by Section 8(b) (4) (D) of the Act to force
or require the Company to assign the jogging work to its members
rather than to members of the Mailers.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and the entire record in
the case, the Board makes the following Determination of Dispute,
pursuant to Section 10 (k) of the Act :
1. Employees engaged as mailers, currently represented by New
York Mailers' Union No. 6, International Typographical Union,
AFL-CIO, are entitled to do the newspaper straightening work on the
Wallastar conveyor belt between the stack starter and the star wrapper
at all times when a deliverer is operating the Wallastar tying machine
at the New York Times Company's plant at 101 West End Avenue,
New York City, New York.
2. Newspaper and Mail Deliverers' Union of New York City and
Vicinity, Independent, is not entitled by means proscribed by Section
8(b) (4) (D) to force or require The New York Times Company to
assign such newspaper straightening work to employees engaged as
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deliverers, who are currently represented by Newspaper and Mail De-
liverers' Union of New York and Vicinity, Independent.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Newspaper and Mail Deliverers' Union of New York
and Vicinity, Independent, shall notify the Regional Director of the
Second Region, 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) to assign the work in dispute to deliverers rather
than to mailers.
MEMBER BROWN took no part in the consideration of the above
Decision and Determination of Dispute.
Tri-County Building and Construction Trades Council of Akron
and Vicinity, AFL-CIO; Local No. 7, Bricklayers, Masons and
Plasterers ' International Union of America , AFL-CIO; Car-
penters District Council for Summit , Medina and Portage.
Counties, and its Local No. 639, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO; Local 894, Inter-
national Hod Carriers ' Building and Common Laborers' Union
of America, AFL-CIO; Local No. 17, International Associa-
tion of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO; Local No. 219, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, AFL-CIO; Local No. 70,
Sheet Metal Workers' International Association , AFL-CIO
and The John G. Ruhlin Construction Company (construc-
tion project of Goodyear Tire and Rubber Company Research
Building, Akron , Ohio). Case No. 8-CD-22. July 18, 1962
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act, following a
charge filed by The John G. Ruhlin Construction Company, herein
called Ruhlin, alleging that the above-named Respondent labor or-
ganizations, herein called the Building Trades Council, have induced
or encouraged employees to strike for the purpose of forcing Good-
year Tire & Rubber Company, herein called Goodyear, to assign par-
ticular work to members of the Respondent Unions rather than to
Goodyear's own employees represented by Local No. 2, United Rubber,
Cork, Linoleum and Plastic Workers of America, AFL-CIO, herein
called the Rubber Workers. A hearing was held before Charles B.
Slaughter, hearing officer, on October 9 and 10, 1961, and thereafter
before Alvin Lieberman, hearing officer, on December 11, 12, and 13,
137 NLRB No. 159.