Boston Herald-Traveler Corp.

National Labor Relations Board - Board Decisions

Dec 24, 1942

46 N.L.R.B. 318 (N.L.R.B. 1942)

In the Matter of BOSTON HERALD-TRAVELER CORPORATION, AMERICAN
NEWSPAPERS, INC., HOTEL & RAILROAD NE-,vs CO., WILSON TISDALE CO.,
INC., JOHN J. GRADY, GLOBE NEWSPAPER COMPANY, POST PUBLISHING
COMPANY, THE BOSTON DAILY NEWSPAPERS and OIL WORKERS INTER-`
NATIONAL UNION, LOCAL No. 381 (C. I. 0.)
Case No. R.-4531.-Decided December 24, 1942
Jurisdiction : newspaper printing and distributing industry.
Investigation and Certification of Representatives : existence of question : re-
fusal to accord recognition because of alleged existing contract; renewed con-
tract held no bar to, when renewal was not binding at time executed and did
not become effective until after petitioner had given notice to employer of its
claims to representation ; election necessary.
Unit Appropriate for Collective Bargaining : all first, second, and third class
garage employees at garages of named employers ; stipulation as to.
Ropes,, Gray, Best, Coolidge d Rugg, by Mr. Lon L. Fuller, Messrs.
Francis T. Leahy, Edmund J. Blake, and Alfred C. Blake, of Boston,
Mass., for the Companies.
Grant & Angoff, by Mr. Sidney S. Grant, of Boston, Mass., for the
C. I. O.
Messrs. John J. Donnellan and John Clayton, of Boston, Mass., for
the I. A. M.
Mr. Seymour J. Spelman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon amended petition duly filed by Oil Workers International
Union, Local No. 381 (C. I.0.), herein called the C. 1. 0., alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Hotel and Railroad News Co., Boston, Massa-
chusetts, herein called the News Company, American Newspapers, Inc.,
Boston, Massachusetts, herein called the American, Boston Herald-
Traveler Corporation, Boston, Massachusetts, herein called the Herald-
- Traveler, Wilson Tisdale Co., Inc., South Boston, Massachusetts,
herein called the Wilson Company, and John J. Grady, Cambridge,
46 N. L. R. B., No. 39.
318
BOSTON HERALD-TRAVELER CORPORATION 319
Massachusetts, collectively referred to hereinafter as the Companies,'
the National Labor Relations Board provided for an appropriate hear-
ing upon due notice before Thomas H. Ramsey, Trial Examiner. Said
hearing was held in Boston, Massachusetts, on November 13, 1942. The
Companies, the Globe Newspaper Company, the Post- Publishing Com-
pany, the C. I. 0., and International Association of Machinists, Lodge
264, A. F. of L., herein called the I. A. M.; appeared, participated, and
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
On November 27, 1942, a brief in behalf of the Companies was
filed which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
k I. THE BUSINESS OF THE COMPANIES
Boston Herald-Traveler Corporation, a Massachusetts corporation
having its principal place of business in Boston, is engaged in the
publication of the Boston Herald and the Boston Traveler. Approxi-
niately 9 percent of the Company's daily newspapers and approxi-
mately 15 .percent of its Sunday paper are distributed outside the
Commonwealth of Massachusetts.
. American Newspapers, Inc., a Delaware corporation, is engaged in
the publishing of the Boston Daily Record, the Boston Evening
American, and the Boston Sunday Advertiser. A substantial per-
centage of said, newspapers is distributed outside the Commonwealth
of Massachusetts.
Globe Newspaper Company, a Massachusetts corporation, is en-
gaged in the publication of the Boston Daily Globe, the Boston
Evening Globe, and the Boston Sunday Globe. Approximately 12
percent of its daily newspapers and, 17 percent' of its Sunday paper
are circulated.and distributed outside the Commonwealth of Massa-
chusetts.
In the publishing of said newspapers, the above three companies
use newsprint and other supplies, substantially all of which are
shipped from States other than Massachusetts, and from Canada.
These Companies subscribe to and receive material from services
which collect news features and photographs in all parts of the United
States and foreign countries and transmit such material to the Com-,
' Additions , to and corrections in the list of employers have been made to 'conform with
the list of employers set forth in the stipulation of'the parties respecting the appropriate
bargaining unit. See Section IV, infra.
320 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
panes. All three companies are members of the Associated Press and
receive advertising which originates outside of Massachusetts. Globe
Newspaper Company and the Herald-Traveler also subscribe to the
United Press service, and the American to the International News
Service. The Companies concede that they are engaged in commerce
within the meaning of the National Labor Relations Act.
Wilson Tisdale Co., Inc., maintaining a garage in South Boston,
Massachusetts, is a wholly owned subsidiary corporation of Globe
Newspaper Company, engaged in the' distribution of the newspapers
published by its parent corporation.
Hotel & Railroad News Company, maintaining its principal office in
Boston, is engaged in the distribution of the Boston Globe and the
Boston Post. The latter is published by the Post Publishing Com-.
-pang of Boston.
John J. Grady, maintaining a garage in Cambridge, Massachusetts,
is engaged in the distribution of the Boston Post.
The Boston Daily Newspapers is a joint organization of the four
Boston newspaper companies involved herein, created for the purpose
-of bargaining collectively with various labor organizations.
III. THE ORGANIZATIONS INVOLVED
Oil Workers International Union, Local No. 381, is a labor organi-'
zation affiliated with the Congress of Industrial Organizations, ad-
mitting to membership employees of the Companies.
International Association of Machinists, Lodge 264, is a labor or-
.ganization affiliated with the American- Federation of Labor, admit-
ting to membership employees of the Companies.
III. THE QUESTION CONCERNING REPRESENTATION
In a letter dated August 17, 1942, and at a subsequent conference
-with representatives of the Companies, the C. I. O. advised the Com-
panies that it represented a majority of the first-, second-, and third-
^class garage employees of the News Company, the American, the
Herald-Traveler, and John J. Grady.2- The Companies took the posi-
tion that an existing contract with the I. A. M., covering said em-
ployees, precluded the Companies from recognizing any other labor
organization.
The contract with' the I. A. M., referred to above, was executed on
December 1, 1937, covering the first-, second-, and third-class garage
8 At that time, the C. I. 0. asserted, no claim over garage employees of the Wilson Com-
pany, but at the hearing a stipulation , of the parties in respect to the appropriate bargain-
ang unit included these employees ., 'See Section IV, infra.
BOSTON HERALD-TRAVELER CORPORATION 321
employees now sought to be represented by the C. I. O.s • It provided
for a closed shop and automatic reriewil from year to year in the
absence of written notice of a desire to amend by either party not less
than 60 days prior to the end of any yearly contract period. This
contract was renewed, with material modifications, on January 1, 1939,
January 1, 1940, and April 1, 1941. The agreement of April 1, 1941,
provided for renewal of the preceding contract for 1 year to April 1,
1942, with amendments relating to hours of employment and rate's
of pay.
On February 1, 1942, a representative of the Companies received
a written notice from ' the I. A. M., stating a desire to negotiate
changes in the April 1941 contract. Thereafter, on or about March
10, a local of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, A. F. of L., herein called the
Teamsters' Union, interposed a claim of jurisdiction over the third-
class garage employees who were, covered by the I. A. M. contract.
In subsequent conferences with the I. A. M., dating from March 19
to May 1, 1942, the Companies offered a wage increase for first- and
second-class employees, but refused, to make any offers or enter into
any agreement concerning the third-class employees until settlement
of the jurisdictional claim of the Teamsters' Union.
In a letter dated' May 19, the I. A. M. informed the Companies that
its membership had voted to accept the offer of a wage increase for
first- and second-class employees, but stated that "this is not to be put
into effect unitil such time that an agreement is reached" between the
Teamsters' Union and the I. A. M. in respect to the former's juris-
dictional claim.
On or about August 17, after weeks of stalemate in the jurisdictional
dispute, the garage employees contacted and signed membership cards
with the C. I. O. Thereafter, on September 2, the C. 'I. ' O., having
been refused recognition,by the Companies, filed the present petition.
The Companies contend that their "basic" contract (December 1,
1937), renewed from year to year,,was not "interrupted" or termi-
nated by the I. A. M.'s request on February 1 for modifications and,
therefore, constitutes a bar to this proceeding. We do not agree. The
I. A. M.'s letter of February 1, 1942, had the effect of opening the
existing contract for the purpose of negotiating changes. During the
period when a contract is thus opened, the Board will entertain the
3 This contract was entered into by and between the I. A Al , on the one hand, and the
News Company, the American, the Herald-Traveler, the Wilson Company, and John J.
Grady, on the other. The Post Publishing Company and the Globe Newspaper Company
were not parties to the contract, since they do not maintain their own garages, but dis-
tribute their newspapers, respectively, through the News Company'and the Wilson Com-
pany and through the News Company, and John J. Grady.
504086-43-vol. 46-21 .
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
timely'petition of another labor organization which claims to represent
a majority of-the employees covered by the contract.4, '
Thus the single question presented by the instant case is whether or
not the C. I. O. asserted its claim, seasonably, or, stated differently,
whether the Companies and the I. A. M. consummated a hew' agree-
ment prior to notice of the C. I. O.'s claim. The Companies argue
,that, approximately 3 months before any claim was asserted by the
C. I. 0., the parties entered into a new agreement on May 19, when, in
its letter, the I. A. M. accepted the Companies' offer of a wage increase
for first- and second-class garage employees. However, as the Com-
panies admit in their brief, the letter of May 19 is susceptible of a
different interpretation. The language of the letter itself and the
circumstances surrounding its writing demonstrate that the employees
did not intend to enter into a new. agreement unless and until the j uris-
dictional dispute, with the Teamsters' Union was settled. The letter
states:
This (the wage increase ,for first and second class garage em-
ployees) is not to be put into effect until such time that an agree-
ment is reached between all parties to the jurisdictional dispute
now pending between the International Association of Machinists,
Lodge 264, and the Teamsters' Local 203, concerning General
Utility Men (third class garage employees).
Moreover, in describing the reactions of the garage employees to the
jurisdictional claim of the Teamsters' Union, John Clayton, a business
agent of the I. A. M. and author of said letter, stated that:
Our men said that they went in this together and they were going
to stay there. Our members went to a notary public and signed
their names that they wouldn't abide by any agreement unless it
was negotiated by Local 264 J. A. M.). That was done at their
own volition. When they told me about it I was pleased to hear
they were that loyal to the organization. From then on my hands
were tied.
This-attitude on the part of the employees indicates that a resolution
,of the jurisdictional dispute was intended as an essential prerequisite
to the consummation of a new agreement.
I The doctrine laid down in Matter of Mill B, Inc, division of Irwin d Lyons , partners,
doing business under the assumed name of Irwin d Lyons and International Woodworkers
of America, Local 116, C. I. 0., 40 N . L. R. B. 346, urged by the Companies as support
for their contention , has no application to the facts in the instant case. There, the Board
dismissed tip` petition on the grounds that, at the time of the filing of the petition, the
contract ' had already been automatically renewed, since neither party to the contract had
served notice of a desiie to amend See Matter of Theo F. Anderson and Louis Torvinen,
partners , d/b/a Swartz Late Lumber Company and Lumber d Sawnesll Workers Union,
Local ro 2631, chartered by United Brotherhood of Carpenters and Joiners , of America,
affiliated with the A. F of L, 40 N L. R B 853.
BOSTON HERALD-TRAVELER CORPORATION. 323
In light of these facts, we find that no new agreement was reached
prior to the assertion of the C. I. O.'s claim (August 17) and that the
"basic" contract of December 1937 and the subsequent renewals-thereof
constitute no bar to a present determination of representatives since
the contract was opened up for the negotiation of changes by the
I: A. M. on February 1.5
A statement of the Regional Director, introduced`in evidence at the
hearing, indicates that the C. I. O. represents, a substantial number of
employees in the unit hereinafter found appropriate.°
We find that a question affecting commerce has arisen concerning the
representation of employees of the Companies, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the National Labor Rela'-
tions Act. '
IV. THE APPROPRIATE UNIT'
We find, in accordance with a stipulation of the parties, that all
first-, second-, and third-class garage employees of Hotel & Railroad
News Co., at'a garage at 19 Reed Street, Roxbury, Massachusetts; of
American Newspapers, Inc., at a garage located at 471 Harrison Ave-
nue, Boston; of Boston Herald-Traveler Corporation, at a garage
located at 285 Columbus Avenue, Boston; of Wilson Tisdale Co., Inc.,
at a garage 'on Dorchester Avenue, South' Boston; and of John J.
'Grady, at the Kendall Square Garage located in Cambridge, Massa-
chusetts, constitute a unit appropriate for the purposes of collective
,bargaining within the meaning of Section 9 (b) of the Act.'
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
America, 45 N L R B 772
6 The Regional Director stated that the C. 1 0 submitted 31 membership cards, all bear-
ing apparently genuine original signatures Of these , 12 bore dates in August 1942 and 19
were undated All of the 31 signatures are names of persons whose names appear on a
. list of employees containing a total of 35 names. This list was obtained from the I A. M
at the suggestion of the Companies , as one which would correctly reflect the names and
number of employees ins olved.
'This is the'saine unit pio^ided for in the contract with the I. A. Al. The employees
included within the unit are engaged in maintenance of trucks used to distribute the
newspapers of the tour publisheis invoked herein
5 See Matter'of Charlton Company, lee and Upholsterers International Union ofl North
`324 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,'
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
Dnu cTEn that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Hotel & Railroad
News Co. , Boston, Massachusetts, American Newspapers, Inc., Boston,
Massachusetts, Boston Herald-Traveler Corporation, Boston, Massa-
chusetts, Wilson Tisdale Co., Inc., South Boston, Massachusetts, and
John J. Grady, Cambridge, Massachusetts, an election by secret ballot
shall be conducted as early as possible, but not later than thirty (30)
days from the date of this Direction, tinder the direction and super-
vision 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 10, of said Rules and Regulations, among the
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date ofthe Direction herein, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, and. including employees in the armed forces of
the United States who present themselves in person at the polls, but
excluding employees who have since quit or been discharged for cause,
to determine whether they desire to be represented by Oil Workers
International Union, Local No. 381 (C. I. 0.), or by International
Association of Machinists, Lodge 264, A. F. of L., for the purposes of
collective bargaining, or by neither.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election..
I