Newspaper And Mail Deliverers' Union Of New York And Vicinity

National Labor Relations Board - Board Decisions

Sep 29, 1986

281 N.L.R.B. 588 (N.L.R.B. 1986)

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newspaper and Mail Deliverers' Union of New York
and Vicinity and Macromedia Publishing Incor-
porated and TC Enterprises, L.T.D. d/b/a As-
sociated Securities Specialists.' Case 22-CD-
461
29 September 1986
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
The charge in this Section 10(k) proceeding was
filed 30 January 1986 by Macromedia Publishing
Inc. (Employer), alleging that the Respondent,
Newspaper and Mail Deliverers' Union of New
York and Vicinity (NMDU), violated Section
8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of
forcing TC Enterprises, L.T.D. d/b/a Associated
Securities Specialists (Associated), to assign certain
work to employees NMDU represents rather than
to unrepresented employees presently employed by
Associated.2 The hearing was held on 13 March
1986 before Hearing Officer Lorrie Gray.3
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
I. JURISDICTION
The Employer, a New Jersey corporation, is en-
gaged in the publication , circulation, and distribu-
tion of the News Tribune newspaper at its facility in
Woodbridge, New Jersey. During the past year,
the Employer derived gross revenues in excess of
$200,000 and held membership in, and subscribed
to, interstate news services , published nationally
syndicated features, and advertised nationally sold
products.
Associated, a New Jersey corporation, with its
principal place of business in Columbus, New
Jersey, is engaged in the business of providing se-
curity and contract services valued in excess of
' The Company's name appears as amended at the hearing.
2 The Employer's charge incorrectly states that the Union's object was
to force Associated to assign certain work to employees NMDU repre-
sents rather than to unrepresented employees presently employed by As-
sociated. However, at the hearing, and in its brief, the Employer argues
that the Union's object was to force the Employer, and not Associated,
to change its work assignment
8 On 27 March 1986 the Charging Party filed a motion to amend the
transcript. No objections were filed. On 9 May 1986 the Board issued an
order granting the Charging Party's motion.
$50,000 to corporations within the State of New
Jersey, including the Employer.4
From the foregoing , the parties stipulated, and
we find, the Employer and Associated are engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
Further, the parties stipulated, and we find, that
NMDU is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Disputeb
For several years Middlesex County Publishing
Company (Middlesex), a New Jersey corporation,
published a daily newspaper, the News Tribune. In
October 1971 , the Board certified the NMDU as
the exclusive bargaining representative of all circu-
lation employees, including truckdrivers, mailroom
workers, promotion employees, branch office oper-
ators, and other shipping and receiving employees
employed by Middlesex at its Woodbridge, New
Jersey facility. In March 1972, with the NMDU's
consent, Middlesex subcontracted its delivery oper-
ation to 3-C Corporation (3-C), which then entered
into a collective-bargaining agreement with the
NMDU. About the same time , Middlesex signed a
letter of understanding with NMDU, stating that if
Middlesex terminated its contract with 3-C it
would either directly deliver the newspaper using
its own employees and negotiate an agreement
with the Union, or subcontract to another compa-
ny that already had an agreement with NMDU. In
1984, 3-C and Middlesex agreed that their contract
would proceed on a month-to-month basis, allow-
ing for an automatic renewal, unless a 30-day ad-
vance notice was given terminating the contract.
On 5 November 1985,6 in a bona fide purchase,
the Employer acquired the assets of Middlesex.
The Employer agreed to assume certain agree-
ments, leases, and contracts as stipulated in the pur-
chase sale agreement , including Middlesex's labor
contract with Newark Newspaper and Graphic
Communications Union No. 8 as listed in Exhibit C
of the contract.
By letter dated 7 November, Middlesex advised
3-C that its contract was canceled. In turn, counsel
for 3-C advised NMDU that truckdrivers repre-
sented by the Union would be terminated once the
newspaper operations were transferred to the new
4 The Board will assert jurisdiction over a nonretad enterprise, which
has an annual inflow or outflow , direct or indirect , across state lines of at
least $50,000 Siemons Mailing Service, 122 NLRB 81, 85 (1958).
S The factual narrative is based on relevant testimony from the 10(k)
hearing, the 301 civil action, and the 10(1) proceeding . The parties stipu-
lated to the earlier proceedings , which were made a part of this record
6 All dates are in 1985 unless otherwise stated.
281 NLRB No. 95
NEWSPAPER & MAIL DELIVERERS (MACROMEDIA PUBLISHING)
employer . On 23 December the Employer, by its
counsel, also advised NMDU of its intent not to
hire 3-C employees represented by NMDU, but in-
stead to subcontract the Employer 's delivery serv-
ices to another independent contractor . In Decem-
ber, the Employer engaged Associated , whose em-
ployee drivers are unrepresented , to provide securi-
ty and delivery services for the publication and dis-
tribution of the News Tribune.
On 27 December the Employer began publishing
the newspaper and the NMDU immediately com-
menced picketing the premises, carrying signs with
the following legends: "Scabs Go Home, NMDU
Locked Out, NMDU on Strike, and We 're here to
Stay. "7
The picketing disrupted the Employer's entire
operation . The Employer's vice president and busi-
ness manager , John Burk, testified that on approxi-
mately 25 to 30 separate occasions since 27 Decem-
ber, he observed trucks carrying supplies to the
Employer stopped by picketers and drivers turned
away, prohibited from completing their deliveries.8
Because these incidents occurred frequently, Burk
testified that about 90 percent of his time was spent
making special arrangements for the Employer's se-
curity personnel to pick up deliveries.
Furthermore, Burk also testified that the press
cycle was changed to an earlier publishing sched-
ule, thus allowing a greater time margin for error,
since the press employees refused to cross the
picket line and inexperienced , less efficient replace-
ments were hired.
Those employees who did report to work had
difficulty getting in and out of the plant . Picketers
would block their cars, bang , pound, and spit on
them . Finance Supervisor Roy Schrumph testified
that picketers threw a coffee container at his car
while he was leaving the plant, and on another oc-
casion he was prohibited from entering through the
main entrance of the plant because broken glass
was on the driveway.
In January 1986 , the mayor of Woodbridge,
New Jersey, called a meeting between NMDU and
the Employer, requesting both sides to stop the vi-
olence at the picket line . At the meeting, NMDU's
counsel, Marshall Lippman, asked employer repre-
sentatives why they could not "engage an NMDU
' The parties stipulated that beginning about 5 February 1986 some of
the picket signs read , "Notice to the Public : The News Tribune does not
employ members of NMDU nor does it have a contract with members of
NMDU." Other signs continued to state that NMDU was on strike and
locked out.
8 Specifically , Burk testified that on 30 December a Garden State
Paper truck, which delivers newspaper print , attempted to make a deliv-
ery but was stopped by 30 to 40 picketers on the line . A few weeks later,
when the same company truck attempted to make a second delivery,
picketers punctured the vehicle 's tires while the driver was placing a tele-
phone call.
589
organized wholesaler as opposed to the independ-
ent contractor [they] had already engaged ."9 Sub-
sequently, in February 1986, NMDU's president,
Jerry Cronin, and the Employer 's president, Robert
Sapanara, informally discussed the picketing. Sa-
panara testified that Cronin mentioned he could be
more flexible so arrangements could be made to
"get back to having the people who were previous-
ly delivering the paper deliver under [a] more eco-
nomic structure ." That same month , a meeting was
scheduled between NMDU representatives and the
employer officials. Sapanara testified that Cronin
articulated a plan for the Employer to deliver the
paper more economically through a wholesaler,
such as Raritan Periodicals, whose employees are
represented by NMDU. Sapanara also testified that
during a television interview Cronin stated,
"[T]hose are our jobs and we'll get them back by
hook or crook."
In attempts to settle this labor dispute, Langel of-
fered the NMDU a financial settlement for workers
previously employed by 3-C. According to Langel,
the Union rejected the offer, stating the picketing
would cease only if the Employer hired employees
directly or entered into an agreement with an
NMDU organized wholesaler . The picketing con-
tinued until the 10(k) proceeding.
B. Work in Dispute
The work in dispute consists of the delivery op-
erations of the News Tribune newspaper at the Em-
ployer's facility in Woodbridge, New Jersey,
which work is now being performed by unrepre-
sented employees of Associated.
C. Contentions of the Parties
The NMDU contends that the Board should
award the work to employees represented by it be-
cause the Employer is a successor to Middlesex's
newspaper operation , and therefore is bound by the
prior certification of the Union as the exclusive
bargaining representative of truckdrivers at its
predecessor's facility.10 The NMDU asserts that, as
a successor, the Employer is also bound by the pre-
existing collective-bargaining agreement between
NMDU and 3-C. Alternatively, NMDU argues that
the Employer expressly assumed the terms of the
preexisting collective-bargaining agreement be-
tween NMDU and 3-C by its contract with Mid-
6 The Employer's counsel, John Langel, testified that even before the
closing date of the purchase agreement Lippman had suggested that the
Employer contract "with an NMDU organized wholesaler other than the
independent contractor."
10 NMDU concedes that this is a traditional jurisdictional dispute be-
tween two competing claims for the delivery of the News Tribune, and
that the Board should exercise its authority under Sec. 10 (k) and award
the disputed work to employees represented by it.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dlesex, which states that the purchaser agrees to
acquire "all the tangible and intangible assets of the
seller." If the Board, however, finds no employer
obligation under that contractual provision, the
Union maintains, that the Employer is nevertheless
bound by NMDU's labor contract which is similar
to that listed in Exhibit C of the purchase sale
agreement, and was "entered into in the ordinary
course of the seller's business between the date of
[the] agreement and closing."11
The Employer contends that the case is properly
before the Board for determination; that reasonable
cause exists to believe that the NMDU violated
Section 8(b)(4)(D) of the Act; and that the disputed
work should be awarded to Associated's unrepre-
sented employees based on the Employer 's assign-
ment and practice, preference, and the economy
and efficiency of operation.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must ford reasonable cause to believe that
Section 8(b)(4)(D) has been violated and that the
parties have not agreed to a method for voluntary
adjustment of the dispute.
The parties stipulated that no agreed-upon
method exists for voluntary adjustment of this dis-
pute.
The Charging Party Employer does not directly
employ the employees who are performing the dis-
puted work.12 We nevertheless find that Section
8(b)(4)(D) is applicable.
Section 8(b)(4)(D) makes it an unfair labor prac-
tice for a labor organization to engage in pro-
scribed activity with an object of "forcing or re-
quiring any employer to assign particular work to
employees in a particular labor organization or in a
particular trade, craft, or class rather than to em-
ployees in another labor organization or in another
trade, craft or class . . . ."
The picketing at the Woodbridge newspaper fa-
cility commenced immediately upon the Employ-
er's assuming operations. The NMDU's picketing
disrupted the Employer's entire business; the pick-
eters prohibited delivery trucks from crossing the
picket line; the Employer's press crew also refused
to cross the picket line; and those employees who
11 NMDU maintains that when Middlesex terminated its contract with
3-C, it became legally obligated to either hire NMDU-represented em-
ployees directly, or to subcontract with another wholesaler who employs
NMDU-represented employees. Therefore, it contends that Middlesex, by
terminating its contract with 3-C, was entering into an agreement similar
to that listed in Exh C during the ordinary course of business
18 Associated , the unrepresented employees ' employer, did not file a
charge with the Board , but made an appearance at the hearing.
did report to work were threatened, harassed, and
intimidated by picketers.
The Employer's president, Robert Sapanara, tes-
tified that employer officials were asked by
NMDU representatives on several occasions why
they could not "engage an NMDU organized
wholesaler as opposed to the independent contrac-
tor they had already engaged ." He also testified
that NMDU President Cronin stated , "[T]hose are
our jobs and we'll get them back by hook or
crook."
This evidence shows that NMDU induced and
encouraged the Employer 's employees to refuse to
work at the facility, with an object of forcing the
Employer to reassign the disputed work from As-
sociated's unrepresented employees to employees
represented by NMDU.13
Under these circumstances, we find reasonable
cause to believe a violation of Section 8(bX4)(D)
has occurred and that there exists no agreed-upon
method for voluntary adjustment of the dispute
within the meaning of Section 10(k) of the Act.
Accordingly, we find 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
There is no evidence of relevant Board certifica-
tions or collective-bargaining agreements . Sapanara
testified that the Employer has never entered into a
collective-bargaining agreement with NMDU nor
has it ever hired any person who is represented by
NMDU.14 The NMDU maintains that because the
1' The NMDU's business agent, Joseph Cotter, testified that beginning
mid-January 1986 the Union's picketing became informational . The issue
of whether the picketing had a lawful recognitional or informational
object was not raised in the Union's brief. We, however , need not resolve
that question, since one proscribed object is sufficient to bring NMDU's
conduct within the coverage of Sec. 8(bx4)(D ), even if a lawful purpose
was shown to exist . Painters Local 79 (O Brien Plastering), 213 NLRB
788, 790 ( 1974).
14 The NMDU filed unfair labor practice charges against Middlesex, 3-
C, and the Employer alleging violations of Sec. 8(aXl), (3), and (5). On
Continued
NEWSPAPER & MAIL DELIVERERS (MACROMEDIA PUBLISHING)
Employer publishes the same daily newspaper as its
predecessor, at the same location, with the same
equipment, serving the same customers, and with
the same work force of the predecessor , it is bound
by the prior Board certification of NMDU as the
exclusive bargaining representative of unit employ-
ees at Middlesex, and therefore assumed the collec-
tive-bargaining agreement between NMDU and 3-
C. Assuming , arguendo, that the Employer is a
successor to Middlesex, it is well settled that a new
employer is not bound by the substantive terms of
a collective-bargaining agreement which it did not
agree to assume.1 5 Therefore, this factor does not
favor an award of the disputed work to either
group of employees.
2. Company preference and practice
Since 27 December when the Employer began
publishing the News Tribune, it has assigned the
disputed work to Associated. Associated has per-
formed the assigned work with its unrepresented
employees , and the Employer prefers to have As-
sociated employees continue to do the work. This
factor therefore favors an award to Associated's
unrepresented employees.
3. Area and industry practice
Sapanara testified that of the four major newspa-
per publishers in the Middlesex area that includes
the Employer , the New Brunswick Home News,
Asbury Park Press, and the Newark Star-Ledger,
the Star Ledger is the only company that employs
NMDU-represented drivers.' 6 This evidence, how-
ever, is insufficient to establish an area and industry
work assignment practice.
Accordingly, this factor does not favor an as-
signment of work to either group of employees.
4. Relative skills
Sapanara testified that no special training was
necessary for operating the delivery vehicles and
that only 2 or 3 days were spent familiarizing the
24 January 1986 the Regional Director dismissed the charges . The Union
filed an appeal , which was pending before the General Counsel at the
time of the hearing . The appeal was denied 14 April 1986.
15 NLRB Y. Burns Security Service, 406 U .S. 272 (1972). We reject
NMDU's contention that the Employer contractually assumed its prede-
cessor's relationship with it . The purchase sale agreement specifically
stated in Exh. C that the Employer agreed to assume the Newark News-
paper and Graphic Communications Union No. 8 labor contract. No
other labor contract was stipulated. Therefore, the Employer asserts that
the contract manifests its intent to be bound by no other labor contract.
We agree. As United States District Judge Bissell found in the 301 civil
proceeding, which was made a part of this record , "[I]n contract inter-
pretation, normally the specific governs over the general."
16 On cross-examination Sapanara clarified that the Home News paper
is distributed in part by Raritan Periodical Services , which has an agree-
ment with NMDU . He also testified that approximately 3 percent of the
circulation of the Bergen Record Newspaper is delivered by NMDU-rep-
resented employees.
591
drivers with delivery routes . Because no particular
skill is necessary to perform the disputed work, this
factor does not favor an award to either NMDU-
represented employees or to Associated's unrepre-
sented employees.
5. Economy and efficiency of operation
The work Associated employees have performed
under the contract with the Employer includes the
disputed work as well as security services . Sapan-
ara testified that the delivery of the News Tribune
under its contract with Associated is more econom-
ical and efficient because Associated 's unrepresent-
ed employees make bulk deliveries to branch coun-
selors as opposed to delivering papers to individual
carriers . Thus, this consolidated distribution system
is more economical and efficient because it permits
truckdrivers to make more deliveries in less time.''
We therefore find the factor of economy and effi-
ciency of operation favors an award to Associat-
ed's unrepresented employees.
Conclusion
After considering all the relevant factors, we
conclude that Associated's unrepresented employ-
ees are entitled to perform the work in dispute. We
reach this conclusion relying on the factors of com-
pany preference and practice and economy and ef-
ficiency of operation . The determination is limited
to the controversy that gave rise to this proceed-
ing.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Unrepresented employees of TC Enterprises,
L.T.D. d/b/a Associated Securities Specialists are
entitled to perform the disputed work consisting of
the delivery operations of the News Tribune news-
paper at the Employer 's facility in Woodbridge,
New Jersey.
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 Macromedia Publishing Incorporated to
assign the disputed work to employees represented
by it.
3. Within 10 days from this date, Newspaper and
Mail Deliverers ' Union of New York and Vicinity
17 The Employer also claims that awarding the work to Associated's
unrepresented employees would save the Employer money, since the cost
of delivery with respect to wages under the present assignment is sub-
stantially less than if NMDU-represented employees were to perform the
work. Such economic benefits, however, are not regarded as a factor.
See Cuyahoga Carpenters District Council (Midwest Exhibitions), 217
NLRB 190, 193 (1975).
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall notify the Regional Director for Region 22 in 8(b)(4)(D), to assign the disputed work in a manner
writing whether it will refrain from forcing the inconsistent with this determination.
Employer, by means proscribed by Section