Washington Mailers Union No.29

National Labor Relations Board - Board Decisions

Aug 22, 1969

178 N.L.R.B. 194 (N.L.R.B. 1969)

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Washington Mailers' Union No. 29 and The McCall
Printing Company, Mid-Atlantic Division and
Bookbinders and Bindery Workers Union No. 144.
Case 5-CD-134
III. THE DISPUTE
A. Background and Facts of the Dispute
August 22, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended,
following a charge filed by The McCall Printing
Company, Mid-Atlantic Division , herein called the
Employer , alleging a violation of Section 8(b)(4)(D)
by Washington Mailers' Union No. 29 , herein called
the Mailers . Pursuant to notice , a hearing was held
on May 22 and May 23, 1969, in Washington, D.C.,
before Maurice J. Nelligan , Jr., Hearing Officer.
The Employer , the Mailers , and Bookbinders and
Bindery Workers Union No. 144, herein called
Bookbinders, appeared at the hearing and were
afforded full opportunity to be heard , to examine
and to cross -examine witnesses , and to adduce
evidence bearing on the issues . All parties filed
briefs with the National Labor Relations Board.
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 this case to a
three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error . They are hereby
affirmed . Upon the entire record in this case, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is engaged in the business of
printing magazines at its Glen Dale, Maryland,
plant. During the preceding year the Employer sold
and shipped directly to customers located outside of
the State of Maryland goods valued in excess of
$50,000. We find, accordingly, that the Employer is
engaged in commerce within the meaning of the Act
and that it will effectuate 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 Bookbinders are labor organizations
within the meaning of Section 2(5) of the Act.
The dispute concerns the work of operating
mailing heads which affix address labels onto
magazines and other publications. At the
Employer's plant, this work had heretofore been
performed by mailers, using Cheshire machines,
after the magazines had been stitched or stapled
together and cut to uniform size in the bindery
department,' and then manually stacked on skids
and moved to the mailroom. After completion of
the mailing head operation, mailers separated the
magazines according to zip code, tied them in
bundles, and placed them in mail bags.
In order to eliminate the need for carrying
magazines from the bindery to the mailing
department, and to eliminate the function of hand
feeding the Cheshire machines, as well as to provide
the added feature of a loose card inserter, the
Employer introduced a KAA Magnacraft machine
into the plant. Such a machine can be automatically
fed by a rolling belt when attached to the bindery
equipment. Under this layout, after a magazine is
trimmed by the binder, the Magnacraft will perform
a loose card insertion function as well as the mailing
head function formerly performed by the Cheshire
machine.
Operation of the Magnacraft mailing head is
almost identical to the operation of the Cheshire. A
period of 30 days to 6 months is required in order to
become proficient in the operation of a mailing
head. When the Magnacraft was purchased, mailers
received factory training in its operation. They also
operated two dry runs after it was delivered.
In October 1968, the Employer began to utilize
the loose card inserter on the Magnacraft, assigning
this operation to the bookbinders. The Magnacraft
was attached to the bindery equipment and operated
in the bindery section which is separated by a 9-foot
aisle from the area where mailers normally work.
On January 29, 1969, the Employer operated the
Magnacraft mailing head for the first time. On that
occasion, the mailers ran the mailing head, and
performed the separating, tying, and bagging
functions at the machine rather than in the
mailroom. The bookbinders then shut off the
equipment and walked off the job.
The Bookbinders made the assignment to the
mailers, of operating the Magnacraft, the subject of
a grievance under the Bookbinders' contract. In a
proceeding to which the Mailers were not made a
party, the arbitrator ruled that the
collective-bargaining contract between the Employer
and the Bookbinders required the Employer to
assign the disputed work to the bookbinders since,
under that agreement, the bookbinders are entitled
to operate "mailing equipment when attached to
'By use of machinery operated by the Bookbinders
178 NLRBNo.28
WASHINGTON MAILERS' UNION NO. 29
existing bindery equipment". The Mailers threatened
to walk off the job if this award were honored and,
thereafter, in an arbitration proceeding involving the
Employer and the Mailers, to which the
Bookbinders were not made a party, the Mailers
prevailed. The arbitrator found that the work in
dispute is covered by the contract's grant to the
mailers of the work of "the attaching of addresses
. or the imprinting or attaching of addresses .. .
by automatic mailing machines." The arbitrator
further found that the contract did not limit the
mailers to "strict geographical lines within the
confines of the plant."
Neither union has been certified by the Board. It
is clear that the operation of the KAA Magnacraft
mailing head was within the contemplation of the
parties when both the Bookbinders' contract and the
Mailers' contract were negotiated and that the
Employer, in each case, contracted to assign the
disputed work. Although the Employer initially
assigned the work to mailers, and, as noted,
provided for their factory training in the operation
of the new machine, the Employer changed its
position at the hearing herein and now seeks to have
the Board assign the work to bookbinders. If the
Board honors this request, the Employer has stated
its intention to assign the work of separating, tying,
and bagging magazines after they have been
addressed, to employees represented by another
Bookbinders' Union, Local 42. Employees
represented by that local normally perform the
subsidiary operations when Local 144 bookbinders
operate a machine.
At the two or three other plants in the United
States which use the Magnacraft and employ both
employees represented by the Mailers and
employees represented by Bookbinders, mailers
operate the mailing heads. On the other hand, this
Employer uses the Magnacraft in its Dayton, Ohio,
plant, where mailers are not employed, and the
mailing heads are operated by bookbinders.
Numerous printing plants throughout the country
utilize bookbinders to operate mailing head
machines.
B. The Work in Dispute
The work in dispute is the operation of mailing
heads on Magnacraft KAA machines at the
Employer's Glen Dale, Maryland, plant.
C. Contentions of the Parties
In support of its contention that the disputed
work should be assigned to bookbinders, the
Employer argues that such an assignment would be
more economical and would provide for greater
flexibility than would be obtained by having the
work performed by mailers. Thus, the Employer
asserts that the operator of the bindery equipment
could also operate the mailing head and would also
195
be available for other bindery work when work on
the integrated machine was not available.
Additionally, as noted, if the mailing head operation
is assigned to bookbinders, the Employer intends to
assign the subsidiary mailing functions to members
of another Bookbinders' local, rather than to
mailers. The last mentioned anticipated assignment,
it is estimated, would result in a $1 per hour per
employee savings for the Employer as a result of
different contract wage rates.
The Bookbinders relies on the factors of employer
preference, contract language, and a supposed
industry custom under which when two mechanical
functions are integrated, jurisdiction over the
previously lesser function passes to the craft with
jurisdiction over the previously greater function. The
Bookbinders also points out that its members
perform a substantial amount of mailing work,
including the operation of mailing heads, in
commercial printing shops throughout the country.
The Mailers relies on the fact that operation of
the Magnacraft mailing head virtually duplicates the
work its members have long performed on the
Cheshire2 and is in fact, a direct substitution
therefor. It also urges the Employer's initial
assignment of the work to mailers, the superior
skills of mailers in performing this operation, and
the fact that area and industry practices with respect
to the operation of the Magnacraft mailing head,
limited as they are, favor mailers. Finally, the
Mailers points out that if the disputed work is
awarded to bookbinders, and the Employer then
follows through on its stated intention to assign the
subsidiary mailing functions to employees
represented by another Bookbinders' local, mailers
could loose a substantial number of jobs.
D. Applicability of the Statute
The charges herein allege a violation of Section
8(b)(4)(D) of the Act. The record shows, and the
Mailers concedes, that on March 27, 1969, Mailers
threatened to strike if the disputed work were
assigned to bookbinders. 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 the dispute is properly before the
Board for determination.
E. 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.'
'Mailers will , in any event, continue to operate the Cheshire on those
items that go directly to the mailroom from the pressroom and do not pass
through the bindery.
'N L R B v. Radio Television Broadcast Engineers Union Local 1222,
International Brotherhood of Electrical Workers (Columbia Broadcasting
System ), 364 U S 573, International Association of Machinists, Lodge
No 1743, AFL-CIO (JA Jones Construction Company), 135 NLRB
1402, 1411
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Certain factors usually considered by the Board in
jurisdictional dispute cases provide little assistance
in determining the instant dispute. Thus, neither
union has been certified by the Board as the
exclusive bargaining representative of employees
engaged in performing the work in question.
However, both unions obtained from the Employer
contract language clearly conferring jurisdiction over
the work, and these contracts have been so
construed by arbitrators. While the evidence
pertaining to area and industry practice favors the
Mailers, in that other printing plants, utilizing the
Magnacraft and employing both mailers and
bookbinders, have assigned the disputed work to
mailers, use of the Magnacraft is not sufficiently
widespread for a clear practice to have emerged.
The factor of skill is initially favorable to mailers
both because of their previous experience in
operating the Cheshire machine and because they
have received factory training on the Magnacraft
mailing head. However, it is clear from the record
that given a period of training, bookbinders are
capable of performing the work.
The Employer's contention that assignment of the
work to bookbinders will effect an economy and
provide greater flexibility of operations does not
withstand scrutiny. Thus, if the work is assigned to
bookbinders, the same employee who operates the
bindery equipment could also take charge of the
mailing head. On the other hand, if the mailers are
assigned the work, the employee assigned to the
operation of the mailing head would also assist in
the performance of the subsidiary mailing functions.
In either case, the total number of employees needed
to perform the bindery and mailing functions on,
and adjacent to, the machine would be the same. At
the hearing, the Employer ultimately conceded that
it could achieve no economy from the resolution of
this dispute in and of itself, and that any "straight
hourly economy" would be derived solely from the
wage savings to be realized by the reassignment of
subsidiary mailing functions now performed by
mailers to employees represented by another
Bookbinders' local, a matter not now before us.
In these circumstances, where other factors do not
predominate in favor of the claim of either union,
the factor of most compelling significance is that
under established past practice at the Employer's
plant the operation of the mailing heads has been a
function lodged in the mailers unit." Although the
work in dispute is to be performed on the
Magnacraft rather than the Cheshire, the work is a
direct substitution for, and in lieu of, identical work
performed by mailers on Cheshire mailing heads in
the same plant. Transferral of this function from
mailers to bookbinders would have the effect of
subtracting from the quantum of work available for
members of the mailers' unit while adding pro tanto
to that of the bookbinders. Moreover, as observed
by the arbitrator to the contract dispute between the
Employer and the Mailers:
Finally, it makes good collective bargaining
sense for the employees in the Mailers unit to
operate the KAA mailing head because the work
is identical with the Cheshire machines. It would
not be in keeping with sound collective bargaining
principles for the operators of the KAA mailing
head to be excluded from a bargaining unit of
employees performing precisely the same function
because they are working across an open aisle 10
to 20 feet away.
In light of the above, we conclude that mailers
represented by Washington Mailers Union No. 29
are entitled to the disputed work and we shall
,determine the dispute in their favor.
In making this determination, we are assigning
the disputed work to mailers who are represented by
Mailers Union No. 29, but not to the Mailers
Union or its members. Our present determination is
limited to the particular dispute which gave rise to
this proceeding.
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
hereby makes the following Determination of
Dispute.
Mailers employed by the Employer who are
currently represented by Washington Mailers' Union
No. 29, are entitled to perform the work of
operating the mailing heads on Magnacraft KAA
machines at the Employer's Glen Dale, Maryland,
plant.
'See Women 's Bindery Union , Local No. 42, International Brotherhood
of Bookbinders, AFL-CIO (National Publishing Division , McCall
Corporation), 150 NLRB 388