Typographical Union 6 (New York news)

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 303 (N.L.R.B. 1984)

TYPOGRAPHICAL UNION 6 (NEW YORK NEWS)
New York Mailers Union Number 6, International
Typographical Union, AFL-CIO and New York
News Inc.
Newspaper and Mail Deliverers' Union of New York
City and Vicinity and New York News Inc.
Cases 29-CD-321 and 29-CD-322
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 15 August 1983 by the Employer, separately
alleging that New York Mailers Union Number 6,
International Typographical Union, AFL-CIO
(Mailers) violated Section 8(bX4XD) of the Nation-
al 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 Newspa-
per and Mail Deliverers' Union of New York City
and Vicinity (Drivers) and, similarly, that Drivers
violated Section 8(b)4)(D) of the Act by engaging
in proscribed activity with an object of forcing the
Employer to assign the same work to employees it
represents rather than to employees represented by
Mailers. The hearing was held 31 August 1983
before Hearing Officer William Shuzman and 23
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 officers' 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 Garden City, New York. The Company annu-
ally receives gross revenues from its publishing op-
erations exceeding S200,000, 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.
270 NLRB No. 52
II. THE DISPUTE
A. Background and Facts of Dispute
The Company publishes and distributes the New
York Daily News and the New York Sunday
News. For many years the Company produced its
various editions of the two newspapers at three
plants located in Manhattan, Brooklyn, and
Queens. In 1983 the Company constructed two sat-
ellite plants as part of a reorganization plan de-
signed to modernize its facilities and print its edi-
tions closer to their distribution areas. When the
new plants are completed and the Brooklyn plant
modernized, the Company will transfer publication
of all its city editions from Manhattan to Brooklyn,
close the Manhattan plant, and transfer all subur-
ban editions to the new satellite plants. When the
satellite plant in Garden City commenced oper-
ations 15 August 1983, the Company began to pub-
lish part of its Nassau/Suffolk edition there. Al-
though that edition is currently shared between the
Brooklyn and Garden City plants, the Company
will eventually transfer the entire edition to
Garden City. The disputed work involves tying
and wrapping of newspapers on Garden City's
automated conveyor lines.
At the Brooklyn and Manhattan plants some of
the conveyor lines leading from the printing press-
es are automated and some are not. On both lines
newspapers leave the press and move to a stacker
machine, which counts them and stacks them into
bundles; a belt conveys the bundles to a wrapping
machine which wraps the bottom of the bundles.
The conveyor then takes them further along the
line, where the employees manually place another
wrapper on top of the bundles and, using a tying
machine, tie each bundle with a plastic or wire tie.
If the line is automated, the conveyor transports
the bundles directly to loading docks. On nonauto-
mated lines, however, employees manually remove
the bundles from the tying machines and roll them
on tables to distribution sites.
Historically, at the Company's Brooklyn plant,
the wrapping and tying operation was shared be-
tween employees represented by both Unions. On
runs designated "direct delivery," Drivers-repre-
sented employees wrapped and tied; on "indirect
delivery" runs, Mailers-represented employees per-
formed the work. Direct delivery involves newspa-
pers which Drivers-represented routemen transport
from the plant to retail newsdealers from whom
the routemen collect remittance; indirect delivery
involves newspapers that wholesalers obtain at the
plant or at certain other locations such as hospitals
or racetracks. Until 1957 the Company distributed
its newspapers to newsdealers in certain parts of
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nassau and Suffolk counties through a wholesaler,
Rockaway News Company. Mailers-represented
employees wrapped and tied the newspapers be-
cause their delivery was indirect. In 1957 the
Rockaway distributorship failed and the Company
instituted direct delivery to the territory Rockaway
had serviced.
Because of the change, the Company attempted
to assign wrapping and tying work associated with
the Nassau/Suffolk runs to Drivers-represented em-
ployees. The Mailers took the matter to arbitration
and obtained an award assigning the work to em-
ployees it represents. For about a year the Compa-
ny allowed those employees to wrap and tie bun-
dles and Drivers-represented employees to break
the tie, discard the wrappers, and rewrap and retie
the same bundles. The Company then attempted to
assign the work exclusively to Mailers-represented
employees, but the Drivers in 1958 obtained an ar-
bitration award prohibiting the reassignment. The
Company, pincered between conflicting awards, re-
turned to its practice of assigning the initial wrap
and tie to Mailers-represented employees and a
second wrap and tie to Drivers-represented em-
ployees. Dual justification, however, was limited to
nonautomated lines at the Brooklyn plant because
of the impracticability of retying the constantly
moving bundles on automated lines.
When the Company transferred publication of
the Nassau/Suffolk edition to Garden City's auto-
mated lines in August 1983, it assigned the work in
dispute exclusively to Drivers-represented employ-
ees. A Drivers representative informed the Compa-
ny that if that Union had not obtained jurisdiction
over the work it would have engaged in a work
stoppage. In an attempt to claim the work for em-
ployees it represents, the Mailers engaged in three
work stoppages between 15 and 25 August. On 25
August a Federal court issued a temporary injunc-
tion against the work stoppages under Section 10(l)
of the Act.
B. Work in Dispute
The disputed work involves the wrapping and
tying of newspapers at the Company's Garden
City, New York plant, which are delivered to
points in Long Island by Drivers-represented em-
ployees and were formerly distributed through the
Rockaway News Co.
C. Contentions of the Parties
The Company and Drivers contend that the
work should be awarded to Drivers-represented
employees based on the collective-bargaining
agreement between those parties, company prefer-
ence and past practice, and economy and efficiency
of operation. The Mailers Union concedes that
Drivers has a legitimate claim to the work, but
contends that the Mailers' claim is equally justified
and that the Board therefore should either direct
the Company to negotiate a solution to the dispute
satisfactory to both Unions, or award the work on
an alternating basis to both groups of employees.
D. Applicability of the Statute
The parties have stipulated that there is reasona-
ble cause to believe that Section 8(b)(4)(D) has
been violated and that there is no agreed method
to resolve the dispute. Both Unions continue to
claim the disputed work, Drivers threatened a
work stoppage if the work were reassigned to
Mailers, and Mailers engaged in a series of work
stoppages to obtain the work until a court enjoined
the activity. We find reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred
and that there exists no agreed method for volun-
tary adjustment of the dispute within the meaning
of Section 10(k) of the Act. Accordingly, we find
that the dispute is properly 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),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Certification and collective-bargaining
agreements
Both Unions' collective-bargaining agreements
support colorable claims to the work. The Mailers'
agreement, at section 3(b), defines Mailers jurisdic-
tion "as covering all mailing work within the juris-
diction of the Union." Section 17 allows the Com-
pany control over the manner of wrapping or tying
if the work is performed in accordance with sec-
tion 3. As to the Drivers, the evidence is undis-
puted that the Union has historically retained juris-
diction over direct delivery wrapping and tying. Its
collective-bargaining agreement specifies, in section
2-A.2, that bundles delivered by routemen "shall be
tied with a wrapper made up by a member of the
bargaining unit, or in the same manner as present
practice . . . in all areas where there is direct de-
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TYPOGRAPHICAL UNION 6 (NEW YORK NEWS)
livery." Accordingly, we find that this factor does
not favor an award to employees represented by
either Union.
2. Company preference and past practice
The Company has assigned the work to Drivers-
represented employees, who have traditionally per-
formed wrapping and tying associated with all
direct delivery at both the Company's Manhattan
and Brooklyn plants. The only exception to the
practice has been the shared jurisdiction over the
former Rockaway distribution occasioned by con-
flicting arbitration awards. Accordingly, this factor
favors an award to Drivers-represented employees.
3. Area and industry practice
The evidence is insufficient to establish an area
or industry practice concerning the work in dis-
pute. Accordingly, this factor favors assignment
neither to Drivers-represented nor Mailers-repre-
sented employees.
4. Relative skills
Because the work requires no special skills, this
factor does not favor assignment to either Drivers-
represented or Mailers-represented employees.
5. Economy and efficiency of operation
The automated lines at the Garden City plant
print approximately 200,000 newspapers each day,
which constitute the entire Nassau/Suffolk edition.
The Drivers Union has undisputed jurisdiction
over wrapping and tying on approximately 120,000
of those newspapers. The remaining 80,000 consti-
tute the former Rockaway distribution and involve
the disputed work. If the work were awarded to
Mailers-represented employees exclusively, or on
an alternating basis, employees represented by
Drivers would nonetheless have to remain on the
job for wrapping and tying of the majority of the
press run. Also, on the modernized Garden City
lines there is no distinction at the tying machine be-
tween newpapers going to direct delivery accounts
and newspapers going to accounts Rockaway
News serviced before 1957. The only purpose of
making this distinction would be to identify which
parts of the press run Mailers-represented and
Drivers-represented employees would wrap and
tie. This system would detract from efficient, eco-
nomical production. Accordingly, this factor favors
an award to employees represented by Drivers.
6. Arbitration awards
The Mailers offers its 1957 arbitration award
holding that, even though the Company serviced
the Rockaway area directly rather than through a
wholesaler, Mailers retained jurisdiction over
wrapping and tying work associated with that
aspect of the Nassau/Suffolk edition. That award
relied on contractual language still in effect, freez-
ing jurisdiction over work historically held by
Mailers-represented employees. The Drivers offers
a 1958 tripartite arbitration award holding that the
Rockaway distribution had become direct rather
than indirect delivery and, as such, could not be re-
moved from Drivers' jurisdiction. The latter award
found, consistent with our view, that both Unions
had contractual claims to the work, though in
awarding the work the arbitration board added,
"There is no denying that a duplication of work by
two different sets of employees is both unnecessary
and undesirable."
As noted, Garden City's fully automated oper-
ation differs substantially from the operation which
gave rise to the arbitration decisions governing the
Brooklyn plant. In 1972, however, the Company
opened a new plant in Long Island City, New
York, the "Newspoint" plant. The same tying
work disputed here became in 1973 the subject of
yet another arbitration, and that decision awarded
the work to Drivers-represented employees. The
chairman of the arbitration board held:
Despite the arbitration award also awarding
the same work to the Mailers' Union, the un-
dersigned is of the opinion that the Company's
recognition of the Drivers' right to this work
is properly substantiated. One of the touch-
stones in the division of the work under which
the Mailers profited to a greater extent than
the Drivers at Newspoint, was whether the de-
livery was direct or indirect. There is no ques-
tion that today the [former Rockaway] deliv-
eries are direct. For that reason, the work of
tying for such deliveries should be given to
the Drivers.
Although the three arbitration awards, like the
conflicting jurisdictional language of the contracts,
do not provide unequivocal guidance in this case,
the 1973 award is addressed to the setting of a new
plant and is most closely in point. We find that this
factor favors an award to employees represented
by Drivers.
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 company prefer-
ence and past practice, economy and efficiency of
operation, and the 1973 arbitration award granting
similar work to Drivers-represented employees. In
305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of New York News Inc. represent-
ed by Newspaper and Mail Deliverers' Union of
New York City and Vicinity are entitled to per-
form the work of wrapping and tying of newspa-
pers at the Company's Garden City, New York
plant, which are delivered to points in Long Island
by Drivers-represented employees and were for-
merly distributed through the Rockaway News Co.
2. New York Mailers Union Number 6, Interna-
tional Typographical Union, AFL-CIO is not enti-
tled by means proscribed by Section 8(b)(4)(D) of
the Act to force New York News Inc. to assign the
disputed work to employees represented by it.
3. Within 10 days from this date, New York
Mailers Union Number 6, International Typo-
graphical Union, AFL-CIO shall notify the Re-
gional Director for Region 29 in writing whether it
will refrain from forcing the Employer, by means
proscribed by Section 8(b)(4)(D), to assign the dis-
puted work in a manner inconsistent with this de-
termination.
306