Boston Daily Record

National Labor Relations Board - Board Decisions

Jul 29, 1938

8 N.L.R.B. 694 (N.L.R.B. 1938)

In the Matter of BOSTON DAILY RECORD (NEW ENGLAND NEWSPAPER
PUBLISHING Co.) and NEWSPAPER GUILD oil BOSTON (AMERICAN
'NEWSPAPER GUILD)
In the Matter of BOSTON EVENING AMERICAN AND BOSTON SUNDAY
ADVERTISER (NEW ENGLAND NEWSPAPER PUBLISHING Co.) and NEWS-
PAPER GUILD OF BOSTON (AMERICAN NEWSPAPER GUILD)
In the Matter Of NEW ENGLAND NEWSPAPER PUBLISHING Co. and
AMERICAN FEDERATION OF NEWSPAPER WRITERS, REPORTERS & EDI-
TORIAL WORKERS, FEDERAL LOCAL #21432
Cases Nos. R-720, 1i-721, and R-7a2, respectively.-Decided July ^?9,
1938
Newspaper Publishing Industry-Investigation of Rep? esentatives: controversy
concerning representation of employees: controversy concerning appropriate
unit ; rival organizations ; employer's refusal to grant recognition of unions until
question of representation is determined by Board-Umt Appropriate for Collec-
tive Bargamong: election to determine ; where other considerations determinative
of appropriate unit are evenly' balanced, decisive factor is desire and choice of
employees involved-Elections Ordered: union granted 10 days' leave to apply for
removal of name from ballot, where desire to participate not clear.
Mr. Bernard J. Donoghue, for the Board.
Burns cC Brandon, by Mr. Edmund J. Blake, of Boston, Mass., and
Mr. F. -D. Salinger, of Chicago, Ill., for the Company. • -
Isserman, Isserman, Rothbard ct Kapelsohn, by Mr. Abraham J.
Isserman, of Newark, N. J. for the Boston Guild.
Mr. Francis P. Fenton, of Boston, Mass., for the Newspaper Writers'
Union, the Stenographers' Union, the A. F. of L., the Pressmen, the
Building Employes, and the Machinists.
Mr. Sumner Marcus, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On January 28, 1938, American Newspaper Guild, herein called the
Guild, on behalf of Newspaper Guild of Boston, herein called the
Boston Guild, filed with the Regional Director for the First Region
(Boston, Massachusetts) two petitions alleging that questions affecting
8 N. L. R. B., No. 75.
694
DECISIONS AND ORDERS 695
commerce had' arisen concerning the representation of employees of
the New England Newspaper Publishing Company, Boston, Massa-
chusetts, herein called the Company, on the Boston Daily Record,
herein called the Record, and on the Boston Evening American and
the Boston Sunday Advertiser, herein called the American-Advertiser,
respectively, and requesting investigations and certifications of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On March 10, 1938, the Guild
filed amended petitions alleging that questions affecting commerce had
arisen concerning the representation of employees of the Company
on the aforesaid newspapers and also asking for investigations and
certifications of representatives. On March 12, 1938, American Fed-
eration of Newspaper Writers, Reporters and - Editorial Workers,
Federal Local #21432, herein called the Newspaper Writers' Union,
filed a petition alleging that a question affecting commerce had arisen
concerning the representation ' of employees of the Company on the
afore-mentioned newspapers and requesting an investigation and cer-
tification of representatives.
On March 17, 1938, the National-Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to-conduct it and to provide for an
appropriate hearing upon due notice. The Board, acting pursuant to
Article III, Section 10 (c) (2), of the Rules and Regulations, further
ordered that the three cases be consolidated for the purposes of
hearing.
On March 21, 1938, the Regional Director issued a notice-of hear-
ing, copies of which.were duly served upon the Company, the Boston
Guild, and the Newspaper Writers' Unioii. On March 25, 1938, the
Regional Director issued 'a notice of postponement of hearing, copies
of which were duly served upon the same parties. On March 30, 1938,
the Regional Director issued a second'notice of postponement of hear-
ing, copies of which'were also duly served upon the parties. Pursu-
ant to the second notice of postponement`of hearing, a hearing was
held on April 5 and 6, 1938, at Boston, Massachusetts, before Mapes
Davidson, the Trial Examiner duly designated by the Board.
At the hearing motions to intervene were made on behalf of the
Stenographers, Typists, Bookkeepers and Assistants Union, Local
14965 of Boston, herein called the Stenographers' Union ; the Ameri-
can Federation of Labor, herein called the A. F. of L.; Building Serv-
ice Help Local No. 30, Building Service Employes' International
Union, herein called the-Building,Employes; 'International Printing
Pressmen and Assistants' Union of North America, herein called they
696 NATIONAL LABOR RELATIONS BOARD
Pressmen ; and International Association of Machinists, herein called
the Machinists. All these are labor organizations claiming to repre-
sent employees directly affected by the investigation and all were per-
mitted to intervene. Representatives of Boston Typographical Un=
ion No. 13 and of Boston Photoengravers Union No. 3 stated at the
beginning of the hearing that they did not represent any employees
who were affected by the investigation.'
The Board, the Company, the Boston Guild, the Newspaper Writers'
Union, the Stenographers' Union, the Pressmen, the Building Em-
ployes, the A. F. of L., and the Machinists were represented by counsel
and participated in the hearing. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing
on the issues was afforded all parties. During the course of the hear-
ing the Trial Examiner made several rulings on motions and on ob-
jections to the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
At the close of the hearing the Boston Guild filed a second amended
petition which further defined the unit which it claimed to be appro-
priate and which expressly excluded therefrom press clerks, paper
handlers, and building service and maintenance employees. Since
the record indicates that the reason for the intervention by the Press-
men and by the Building Employes was the inclusion by the Boston
Guild in its original and first amended petitions of such employees in
the units it claimed to be appropriate, it appears that the two labor
organizations do not represent employees who will be affected by the
investigation.
On April 20, 1938, the Guild filed a petition requesting that the case
be reopened for the purpose of determining The employees who were
discharged in the course of a mass lay-off which was effected by the
Company after the hearing. On July 2, 1938, the Boston Guild, the
Newspaper Writers' Union, and the Company entered into a stipu-
lation setting forth the names of persons who had been discharged or
who had quit since March 12, 1938, and who, the parties agreed, should
not be eligible to vote in any election directed by the Board. On July
9, 1938, all the other parties here involved signed a statement approv-
ing the stipulation. The petition filed by the Guild is therefore
denied.
Pursuant to notice to all parties a hearing was held before the Board
on -May -17, 1938, in Washington, D. C., for the purpose of :oral, argu r
ment. The Boston Guild, the Newspaper Writers' Union, and the
Company were represented at this hearing. The Company has filed
a brief which the Board has considered.
'1It is clear from the record that the Machinists does not claim to represent any em-
ployees who will be affected by the investigation.
DECISIONS AND ORDERS 697
Upon the entire record in the case, the Board makes the following :
FINDINGS of ,FACT
I. THE BUSINESS OF THE COMPANY
The New England Newspaper Publishing Company is a Massa-
chusetts corporation, wholly owned by American Newspapers, Inc.,
which is part of the Hearst organization of publications and press,
radio, and film services. The Company publishes at Boston, Massa-
chusetts, the Boston Daily Record, a daily morning newspaper, the
Boston Evening American, a daily afternoon newspaper, and the
Boston Sunday Advertiser, a Sunday newspaper. In the publication
of these newspapers, the Company uses newsprint and other supplies,
substantially all of which are shipped from States other than Massa-
chusetts and from Canada. The Company also subscribes to and
receives material from services which collect news, features, and
photographs in all parts of the United States and foreign countries,
and which transmit their products to the Company. The three news-
papers published by the Company are members of the Associated
Press and subscribe to the International News Service. The three
newspapers also receive advertising which originates outside Massa-
chusetts.
The average daily circulation of the Boston Daily Record is ap-
proximately 240,000 copies, of which approximately 25 per cent are
circulated and distributed outside Massachusetts. The Boston Eve-
ning American has an average daily circulation of approximately
260,000 copies, of which approximately 10 per cent are circulated and
distributed outside Massachusetts. The Boston Sunday Advertiser
has an average weekly circulation of approximately 540,000 copies,
of which approximately 40 per cent are circulated outside Massa-
chusetts.
The Company concedes that its operations affect interstate com-
merce within the meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
Newspaper Guild of Boston is a, labor organization affiliated with
American Newspaper Guild, which in turn is affiliated with the Com-
mittee for Industrial Organization. American Newspaper Guild
admits into its membership "any person gainfully employed in and
devoting the major part of his time to an editorial , business, cir-
culation, promotion , or advertising department , or allied groups of
employees , of a news publication."
698 NATIONAL LABOR RELATIONS BOARD
American Federation of Newspaper Writers, Reporters and Edi-
torial Workers, Federal Local #21432, is a labor organization affili-
ated with the American Federation of Labor, apparently admitting
to its membership all employees of the Company's editorial depart-
ments, excluding executives.2
Stenographers, Typists, Bookkeepers and Assistants Union, Local
14965 of Boston, is a labor organization affiliated with the American
Federation of Labor, admitting to its membership all employees of
the Company employed as stenographers, bookeepers, typists, filing
clerks, accountants, comptometer operators, inultigraphers, stencil
cutters, ledger clerks, cashiers, or who are otherwise employed in a
clerical or a stenographic capacity.
III. 713E QUESTION CONCERNING REPRESENTATION
Early in 1937 the Boston Guild secured the membership of a major-
ity of the employees in the editorial departments of the Company's
papers. After negotiations it entered into oral agreements with the
Company regarding wages, hours, and other Working conditions on
behalf of the employees of the editorial departments of the Record
and of the American-Advertiser. The agreements, which were to be
effective until March 31, 1938, and April 8, 1938, respectively, were
embodied in statements of policy which were posted by the Company
on its bulletin boards.
In June 1937 the American Newspaper Guild, With Which the
Boston Guild is affiliated, voted to surrender its affiliation With the
American Federation of Labor and to become affiliated with the Com-
mittee for Industrial Organization. It also voted to extend its mem-
bership and organizational activities to all employees of newspapers
Who had hitherto been unorganized.
As a result of this action, some of the employees of the Company's
editorial departments applied to the American Federation of Labor
for a charter and in January 1938 the A. F. of L. chartered the News-
paper Writers' Union.
Both the Boston Guild and the Newspaper Writers' Union in-
formed the Company during January 1938, that they represented a
majority of the employees of the Company's editorial departments
and requested collective bargaining conferences with the Company.
The Company refused to meet with either because it did not know
which union was actually the representative of its employees. On
' It is not clear from the testimony of the president of the Newspaper Writers'
Union whether all employees of the Company ' s editorial departments or only those
actually engaged in editorial work are admitted to membership The constitution of the
Newspaper Writeis ' Union was not in evidence.
DECISIONS AND ORDERS 699
March'21, 1938, and on March 31, 1938, the Company, at the request
of the, Newspaper Writers' Union, consented to extensions of the
existing statements of policy, pending resolution by the Board of the
question concerning representation of the Company's employees.
We find that a question has arisen concerning representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE. UNIT
At the hearing the Boston Guild contended for a single unit com-
posed of all the employees of the Company, excluding executives,
press clerks, paper handlers, bootjacks, building service and mainte-
nance employees, and also excluding those employees on behalf of
whom the following labor organizations have already bargained and
secured contracts with the Company : Boston Mailers Union No. 16,
Boston Typographical Union No. 13, International Association of
Machinists; Lodge No. 264, Truck Drivers, Chauffeurs and Helpers
Union, Local No. 25, Boston Newspaper Printing Pressmen's Union
No. 3, Boston Photoengravers Union No. 3, Boston Stereotypers
Union No. 2, Newspaper Chauffeurs, Distributors and Helpers, Local
Union No. 259, International Brotherhood of Electrical Workers,
Local No. 103.3 The Stenographers' Union claimed that there should
be a separate unit composed of all "office help."' The Newspaper
Writers' Union and the Company contended for a separate unit com-
3In Its original petitions the Boston Guild contended for two units, one composed of
all the employees in the editorial department of the Record, excluding executives, and the
other composed of all the employees in the editorial depaitment of the American-Adver-
tiser, excluding executives. In its first amended petitions the Boston Guild contended
for two units composed, respectively, of all employees on the Record, excluding
executives and those belonging to craft unions in the mechanical depaitments, and of all
the employees on the American-Advertiser, excluding executives and those belonging to
craft unions in the mechanical departments
' A representative of the Stenographers' Union claimed that the appropii.ite unit con-
sisted of "anvone that woiks in an office, uses a pen or a typewriter, that uses an adding
machine, a bookkkeeping machine, or works in any clerical position, any office help, every
filing clerk, * * * whatever is classified in office help " Although this definition would
not seem to embrace those employed as messengers and salesmen, it is apparent that the
Stenographers' claims extend to these employees, since more than half of the employees
who signed cards introduced into evidence by the Stenographers' Union are engaged either
as messengers or salesmen.
700 NATIONAL LABOR RELATIONS BOARD
posed of the employees in the, editorial departments,' excluding
executives.
In view of the general language used by the representative of the,
Stenographers' Union in setting forth its claim, it is not clear pre-
cisely what employees it desires to include in the unit. There is some
evidence indicating that it seeks a unit which would. exclude a num-
ber of non-editorial employees whom the Boston Guild desires to
include. On the other hand, there is evidence indicating that it
desires to include in the unit `substantially all the non-editorial em-
ployees which the Boston Guild wants to include. Since the position
of the Stenographers' Union is, vague and since the record shows that
the interests of the employees which the Boston Guild desires to in-
clude in the unit are closely allied, we find that all the employees of
the Company, excluding executives,' press clerks, paper handlers,
building service and maintenance employees, and excluding those em-
ployees in behalf of whom the following labor organizations have
already bargained and secured contracts with the Company : Boston
Mailers Union No. 16, Boston Typographical Union No. 13, Interna-
tional Association of Machinists, Lodge No.` 264, Truck Drivers,
Chauffeurs and Helpers Uriion Local No. 725, Boston Newspaper
Printing Pressmen's Union No. 3, Boston Photoengravers Union No.
3, Boston Stereotypers Union No. 2, Newspaper Chauffeurs, Distrib-
utors' and Helpers, Local Union No. 259, International Brotherhood
of Electrical Workers, Local No. 103; and including or excluding.
the employees in the editorial departments as shall be hereafter de-
termined upon the basis of the results of the election herein ordered,
constitute a unit appropriate for the purposes of collective bar-
gaining.
• In support of their contention that the employees of the editorial
departments, excluding executives,' constitute a separate bargaining
unit, the Newspaper Writers' Union and the Company state that dif-
ferent skills are required of such employees than are required of em-
ployees in the other departments of the Company's newspapers and
that the editorial department is functionally independent of the other
departments. The evidence shows, however, that the editorial and
other departments are substantially interdependent and that the skill
required of many employees in the editorial departments more closely
resembles the skill required of various groups of employees in other
departments than it does that required of other employees in the
editorial departments.
Included in the editorial departments are editors and reporters
who are skilled in writing, reporting, and editing; photographers
and artists who possess creative talents and special skills of'a dif-
ferent order; laboratory men who are skilled in the treatment of
DECISIONS AND ORDERS 701
photographic films; and stenographers, clerks, and copy boys, that is,
messengers, who possess little or no specialized, skill. Included in the
advertising, circulation, and business departments are also writers,
who write news items; photographers, and artists; and stenographers,
clerks, and messenger boys. A stenographer, clerk, or messenger, re-
gardless of the department in which he works, does substantially the
same type of work and receives the same amount of compensation.
This is true also of photographers, artists, and other employees. It
is clear, therefore, that, if there were any logic behind the contentions
that units should be created on the basis of similar skills, the units
would cut across departments rather than' be formed along depart-
mental lines.
With respect to the contention that the various departments of the
Company's newspapers function independently, it is clear that in th(;
newspaper industry all departments must work together in order that
the individual issues of the newspaper meet the "deadline" of periodic
publication.
The Newspaper Writers' Union and the Company also contend that
the, bargaining history of employees both of the Company and also
of other newspapers has been on a craft rather than an industrial
basis. It is to be noted, however, that, while organization of news-
papers employees has in the past generally proceeded along craft,
lines to the extent that there has been organization, the history of or-
ganization among the types of employees here involved is not long or
well-defined. Thus, organization of editorial employees of news-
papers generally did not begin until 1933. At that time, such em-
ployees were organized separately rather than as parts of industrial
units. It was at an even later date that organization of the employees
of the type here involved commenced among employees of the Com-
pany. In the first part of 1937, the Boston Guild began to organize
the editorial department employees of the Company and in Sep-
tember or October of the same year extended its organizational ac-
tivities to include other employees of the Company. The News-
writers' Union did not begin its organizational activities until the
latter part of 1937.
On the basis of all the facts, we are of the opinion that the em-
ployees of the editorial departments, excluding executives, may ap-
propriately be included in the general unit sought by the Boston
Guild or be established as a separate, unit as sought by the News-
paper Writers' Union. The close relation between the editorial and
other departments and the similarity of the interests of the em-
ployees in the several departments are indicative of the feasibility
of the first approach; the fact that editorial-department employees
have in the past been organized separately is indicative of the
702 NATIONAL LABOR RELATIONS BOARD
feasibility of the latter approach. There is no history of bargaining
for either type of unit in the newspaper industry which can as yet
be said to indicate the greater feasibility of one unit rather than the
other. We hold that under the circumstances the desires of the em-
ployees in the editorial departments, excluding executives, shall be
determinative.5 The evidence introduced at the hearing indicated
that the Company employs in its editorial departments approximately
210 persons, exclusive of executives. The Newspaper Writers' Union
offered in evidence membership cards of 140 employees in the edi-
torial departments and a ledger showing the receipts of dues from
137 of these employees. On the other hand, the Boston Guild offered
uncontradicted evidence that in April 1937 it represented a majority
of these employees. It further offered evidence that since that date
there have been but six resignations from it and that its membership
among the editorial departments of the Company's newspapers had
by January 1937 increased to 150. It is clear, therefore, that neither
labor organization has clearly established that it represents a ma-
jority of the editorial-departments employees. We shall, therefore,
order an election among such employees to determine whether they
desire to be represented by the Boston Guild or by the Newspaper
Writers' Union, for the purposes of collective bargaining, or by
neither.
If a majority of the employees in the editorial departments select
the Newspaper Writers' Union, they will constitute a separate bar-
gaining unit. If the Boston Guild is accorded a majority by such
employees and also by a majority of the employees in the general
plant unit, the employees in the editorial departments together with
the other employees shall constitute a single bargaining unit. If the"
Boston Guild is accorded a majority by the employees in the editorial
departments but not by the other employees, the employees in the
editorial departments shall constitute a separate unit.
VI. THE DETERMINATION OF REPRESENTATIVES
There was introduced at the hearing evidence showing that on
March 12, 1938, the Company employed approximately 300 persons
in the general unit, excluding editorial employees. Although the
Boston Guild claimed to represent a majority of such employees, it
did not introduce membership cards or other evidence in support
of this claim. The Stenographers' Union offered in evidence authori-
See Matter of The Globe Machine and Stamping Co . and Metal Polishers Union, Local
No. 3, International Association of Machinists , District No. 511, Federal Labor Union 18788,
and United Automobile Workers of America, 3 N. L. R. B. 294 and Matter of American
Hardware Corporation and United Electrical and Radio Workers of America, 4 N. L. R. B.
412.
DECISIONS AND ORDERS' 703
zation cards signed by 47 employees. Under the circumstances, it is
clear that an election will be necessary to determine the question' of
representation. We shall, therefore, order that an election be held
among the employees in the general unit, excluding the employees in
the editorial departments, to determine whether they desire to be
represented by the Boston Guild or by the Stenographers' Union, for
the purposes of collective bargaining, or by neither. Since it'is not
clear from the record whether the Stenographers' Union desires that
its name appear on such a ballot, we shall amend our direction of
election to delete its name from the ballot if it notifies the Regional
Director of such desire within 10 days-from the date of the issuance
of this decision and prior to the actual election.
As pointed out in Section V above and for the reasons therein -set
forth, we shall also direct an election among the employees of the
editorial departments, excluding executives, to determine whether
they desire to be represented by the Boston Guild or by the News-
paper Writers' Union for the purposes of collective bargaining, or by
neither.
At the hearing the parties agreed that in the event the Board
directed an election the Company's pay-roll list of March 12, 1938,
should be used to determine eligibility to vote. After the hearing it
was stipulated that this list should be used subject to 'a second list
which included employees who had quit or been discharged subsequent
to March 12, 1938. Eligibility to vote in the elections shall therefore
be determined on the basis of the list of employees of the Company
on March 12, 1938, as modified by the stipulation and exclusive of any
other employees who have since quit or been discharged for cause.
Upon the basis of the above findings of fact, the Board makes the
following :
CONCLUSION OF LAW'
A question affecting commerce has arisen concerning the repre--
sentation of employees of New England Newspaper Publishing Com-
pany, within the meaning of_ Section 9 (c) and Section 2 (6) and (7),
of the National Labor Relations Act.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 1, as
amended, it is
DIRECTED that, as part of the investigations authorized by the Board
to ascertain representatives for the purposes of collective bargaining
704 NATIONAL LABOR RELATIONS BOARD
with New England Newspaper Publishing Company, elections by
secret ballot shall be conducted within fifteen (15) days from the
date of this Direction, under the direction and supervision of the
Regional Director for the First Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Article III,
Section 9, of said Rules and Regulations, among the employees of
New England Newspaper Publishing Company who fall within the
groups described below :
(a) All the employees on the Boston Daily Record, Boston Evening
American, and Boston Sunday Advertiser who were employed on
March 12, 1938, excluding executives, employees in the editorial
departments, building service and maintenance employees, press
clerks, paper handlers, bootjacks, and excluding employees on behalf
of whom the following unions have bargained and secured contracts :
Boston Mailers Union No. 16, Boston Typographical Union No. 13,
International Association of Machinists, Lodge No. 264, Truck Driv-
ers, Chauffeurs and Helpers Union,, Local No. 25, Boston Newspaper
Printing Pressmen's Union No. 3, Boston Photoengravers Union No.
3, Boston Stereotypers Union No. 2, Newspaper Chauffeurs, Dis-
tributors and Helpers, Local Union No. 259, International Brother-
hood of Electrical Workers, Local No. 103, and also excluding those
who have since quit or who have been discharged for cause, to deter-
mine whether they desire to be represented by Newpaper Guild of
Boston, or by Stenographers, Typists, Bookkeepers and Assistants
Union, Local 14965 of Boston, for the purposes of collective bargain-
ing, or by neither.
(b) The employees in the editorial departments of the Boston
Daily Record, Boston Evening American, and Boston Sunday Adver-
tiser, excluding executives, who were employed on March 12, 1938,
and who have not since quit or been discharged for cause, to determine
whether they desire to be represented by Newspaper Guild of Boston,
or by the American Federation of Newspaper Writers, Reporters &
Editorial Workers, Federal Local #21432, for the purposes of col-
lective bargaining, or by neither.