Brooklyn Daily Eagle

National Labor Relations Board - Board Decisions

Jul 24, 1939

13 N.L.R.B. 974 (N.L.R.B. 1939)

In the Matter of BROOKLYN DAILY EAGLE and NEWSPAPER GUILD OF
NEW YORK
Case No. R-1173.-Decided July 24, 1939
Newspaper Publishing Industry-Investigation of Representatives : contro-
versy concerning representation of employees : controversy concerning appro-
priate unit; refusal by employer to recognize petitioning organization as exclu-
sive representative in a unit which it claims appropriate unless certified by
Board-Contracts : for members only, no bar to investigation ; with the me-
chanical craft unions , no bar to present proceeding since there is no claim that
such craft employees are within the appropriate unit-Unit Appropriate for Col-
lective Bargaining : all the employees of the Company , specifically including
named employees set forth in Appendix A to Decision, excluding executives, em-
ployees who are covered by contracts between the Company and craft unions,
and those listed in Appendix B to Decision , and including or excluding inspec-
tors in the circulation department depending on the results of an election-
Elections Ordered: as to employees in general unit and inspectors in the cir-
culation department.
Mr. George Rose, for the Board.
Isserman, Isserman & Kapelsohn, by Mr. Abraham J. Isserman, of
Newark, N. J., for the Guild.
Mr. William F. Crowell, of Brooklyn, N. Y., and Mr. Charles E.
Murphy, of New York City, for the Company.
Mr. E. J. McGowan and Mr. Michael P. Connors, of New York
City, for the Engineers' Union.
Miss Geneva M. Marsh, of New York City, for the Federal Locals.
Mr. Joseph Simons and Mr. Anthony J. Finamore, of New York
City, for the N. M. D. U.
Mr. Frank O'Hara, of New York City, for the Mailers' Union.
Mr. Joseph M. Finneran, of New York City, for the Pressmen.
Mr. Alfred Peabody, of New York City, for the Machinists.
Mr. Francis V. Paone and Mr. Richard Salant, of counsel to the
Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On October 26, 1938, Newspaper Guild of New York, herein called
the Guild, filed with the Regional Director for the Second Region
13 N. L. R. B., No. 103.
974
BROOKLYN DAILY EAGLE 975
{New York City) a petition alleging that a question affecting com-
merce had arisen concerning the representation of employees of
Brooklyn Daily Eagle, Brooklyn, New York, herein called the Com-
pany, and requesting an investigation and certification of representa-
tives pursuant to Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. On November 25, 1938, the Na-
tional Labor Relations Board, herein called the Board, acting pur-
-suant to Section 9 (c) of the Act and Article III, Section 3, of Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended, ordered an investigation and authorized the Regional Direc-
tor to conduct it and to provide for an appropriate hearing upon due
notice.
On December 2, 1938, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, upon the
Guild, and upon the following labor organizations claiming to rep-
resent employees directly affected by the investigation : Newspaper
and Mail Deliverers' Union of New York and vicinity, herein called
the N. M. D. U.; Mailers' Union No. 6, herein called the Mailers';
Typographical Union No. 91016, herein called the Typographical
Union; American Advertising Associates Union, Federal Local No.
21627, American Federation of Editorial and News Writers Union,
Federal Local No. 21681, American Federation of Newspaper Circu-
lation Employees Union, Federal Local No. 21682, American Federa-
tion of Bookkeepers, Stenographers and Accountants Union, Federal
Local No. 20940, herein collectively called the Federal Locals; Inter-
national Union of Operating Engineers Local No. 30; International
Association of Machinists; Paper Handlers Union No. 1; Photo Em-
ployees Union No. 1; New York Stereotypers Union No. 1; Interna-
tional Brotherhood of Electrical Workers, Local No. 3; and New
York Printing Pressmen's Union, Local No. 2. Pursuant to a notice
of postponement duly served on the parties, a hearing was held on
January 5 and 6, 1939, at New York City, before Mapes Davidson,
the Trial Examiner duly designated by the Board. The Board, the
Company, and the Guild were represented by counsel, and the other
organizations made parties herein, by officers or organizers of the re-
spective unions. All participated in the hearing and were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. At the commence-
ment of the hearing, the Federal Locals moved to dismiss the peti-
tion on the ground that the Board had no jurisdiction over the busi-
ness of the Company and that no genuine question concerning repre-
sentation had arisen. The Trial Examiner denied the motion. Dur-
ing the course of the hearing the Trial Examiner made several rulings
on other motions and on objections to the admission of evidence.
976 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On February 9, 1939, oral argument was had before the Board in
Washington, D. C. The Company and the Guild were represented by
counsel; the Federal Locals by Miss Geneva M. Marsh, an organizer
for the American Federation of Labor; and the International Union
of Operating Engineers and the New York Printing Pressmen's
Union by officials of their respective organizations. During the
course of the oral argument, the Company was granted permission
by the Board to introduce into the record a list of employees who it
asserted should be excluded from the bargaining unit claimed by the
Guild to be appropriate. The Guild was given permission to file a
memorandum in opposition to the Company's claim. Both the list
and memorandum were thereafter filed and have been considered.
On January 27, 1939, the Company and the Guild entered into a
contract covering the employees in the bargaining unit claimed by the
Guild. By express provision the contract was made subject to the
final determination of the Board in this proceeding. At the oral
argument, copies of the contract were lodged with the Board, and the
Board directed that they be made part of the record herein.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Brooklyn Daily Eagle, a New York corporation having its office
in Brooklyn, New York, is the publisher of a daily and Sunday
newspaper of the same name. The Company maintains a branch
office in Chicago, Illinois, for the solicitation of advertising.
All the newsprint, ink, type metal, mats, and blankets used by the
Company in its publication are shipped to it in Brooklyn, New York,
from without the State of New York. The newsprint alone is valued
at about $450,000 per year. The Company uses news, features, and
photographic services which collect their material in all parts of the
country and transmit it to the Company in Brooklyn, New York.
The Company, on the other hand, supplies material to national news
services for distribution throughout the country. For the purposes
of this proceeding, the Company concedes the jurisdiction of the
Board.
H. THE ORGANIZATIONS INVOLVED
Newspaper Guild of New York is a labor organization affiliated
with the American Newspaper Guild, admitting to membership "any
BROOKLYN DAILY EAGLE 977
person gainfully employed in and devoting the major part of his
time to an editorial, business, circulation, promotion, or advertising
department or allied groups of employees of a news publication," in
greater New York and vicinity. The American Newspaper Guild is
affiliated with the Congress of Industrial Organizations.
American Federation of Bookkeepers, Stenographers ,and Ac-
countants Union, Federal Local No. 20940, is a labor organization
affiliated with the American Federation of Labor, herein called the
A. F. of L., admitting to membership "any Bookkeeper, Accountant,
Stenographer, Typist, Telephone Operator, Bookkeeping Machine
Operator, Comptometer Operator, Clerical Workers, File Clerks,
Messengers, Office Boys, Credit Interviewers, Adjusters and Author-
izers, Collectors, Receiving and Shipping Clerks, Stock Clerks, Mer-
chandise Clerks, and all those performing any duties which are
required in connection with general office or clerical work, whether
such work be performed in an office, store or plant."
American Federation of Newspaper Circulation Employees Union,
Federal Local No. 21682, is a labor organization affiliated with the
A. F. of L., admitting to membership "all Circulation Employees,
Road Men, Home Delivery Employees, Return Clerks, Delivery
Clerks, Blotter Clerks, and Free Copy Boys."
American Advertising Associates Union, Federal Local No. 21627,
is a labor organization affiliated with the A. F. of L., admitting to
membership "all those actively engaged in the profession of adver-
tising or those closely allied."
American Federation of Editorial and News Writers Union, Fed-
eral Local No. 21681, is a labor organization affiliated with the A. F.
of L., admitting to membership "all Reporters, Editorial Writers,
News Photographers, and all other employees connected with the
covering and edit of news, excluding typists, stenographers and
secretaries."
Newspaper and Mail Deliverers' Union of New York and vicinity
is an unaffiliated labor organization admitting to its membership
"all workers engaged in handling, (and) distributing newspapers,
periodicals, and magazines" throughout the metropolitan area of
greater New York and vicinity. Its membership is more precisely
defined as follows : "only members working in any of the following
positions shall be considered as `engaged in the craft' ... inspectors,
routemen, recoverymen, wrapper writers, men in 'charge of routing
of mail at newspaper plants," etc.
Mailers' Union No. 6 of New York City and vicinity is a labor
organization affiliated with Mailers' Trade District Union of North
America. Its membership is limited to employees doing work "ap-
pertaining to mailing, such as addressing, tagging, bagging, stamp-
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, labeling, bundling or wrapping, preparing lists of wrappers,
operating stencil •machines, sorting, routing, . . . counting of papers
(leaving or returning)" etc.
Typographical Union No. 91016 is a labor organization affiliated
with International Typographical Union, whose jurisdiction includes
"all branches of the printing and kindred trades other than those
over which jurisdiction has been conceded by agreement."
In addition to the unions listed above, the following labor organ-
izations, whose interests are not disputed, are involved : Interna-
tional Union of Operating Engineers Local No. 30; International
Association of Machinists No. 434; Paper Handlers' Union No. 1;
Photo Employees Union No. 1; New York Stereotypers' Union No.
1; International Brotherhood of Electrical Workers, Local No. 3;
and New York Printing Pressmen's Union No. 2.
III. THE QUESTION CONCERNING REPRESENTATION
Prior to the filing of the Guild's petition herein, the Guild re-
quested the Company to bargain with it as the representative of the
majority of the Company's employees in the unit which the Guild
claims to be appropriate. The Company refused to bargain with the
Guild prior to certification by the Board that it had been designated
by a majority of the Company's employees in an appropriate unit.'
Miss Geneva Marsh, representing the intervening Federal Locals,
moved, as described above, to dismiss the Guild petition on the ground
that no question concerning representation had arisen. This claim was
apparently based on the fact that there was in existence at the time
of the hearing a contract between the Company and the Federal
Locals acting jointly, and that this contract, when taken together
with the contracts between the Company and the various A. F. of L.
mechanical craft unions, resulted in a majority of all the employ-
ees-mechanical as well as white collar-being covered by A. F. of L.
contracts. The contract with the Federal Locals, however, was for
members only and expired in March 1939. Therefore, it is no bar
to a representation proceeding.' Nor are the contracts with the
mechanical craft unions a bar to this proceeding, since there is no
claim at all that such craft employees are within the appropriate unit.
The existing contracts with the mechanical unions are in no way
affected by the present proceedings."
1 As noted above , the Company and the Guild subsequently entered into a contract,
expressly subject to the Board 's determination of this proceeding.
8 Matter of Santa Fe Trails Transportation Company and International Association of
Machinists, Local Lodge 1808, 7 N. L. R . B. 358.
8 Miss Marsh stated at the hearing , "I am merely asking for the dismissal of this.
[Guild petition ] on the basis that this is an attempt to set aside the American Federa-
tion of Labor contracts."
BROOKLYN DAILY EAGLE 979
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
In its petition the Guild alleged that "all employees in the editorial
and news department and commercial division, including business, cir-
culation, advertising, Home Guild, and allied groups, excluding only
executives and employees who are members of recognized mechanical
craft unions" constitute an appropriate unit. During the hearing,
the Guild further clarified its contention by claiming that the appro-
priate unit includes all employees of the editorial and commercial
departments (including business, circulation, advertising, Home
Guild, and Eagle Press), except executives, part-time employees,
space writers, route boys, and those employees who are members of
established craft unions and who are covered by existing collective
bargaining agreements with the Company.
It appears from the record that the Company has collective bar-
gaining agreements with the following labor organizations : News-
paper and Mail Deliverers' Union of New York, Mailers' Union
No. 6, Typographical Union,, International Union of Operating Engi-
neers Local No. 30, International Association of Machinists, Paper
Handlers' Union No. 1, Photo Employees Union No. 1, New York
Stereotypers Union No. 1, International Brotherhood of Electrical
Workers, Local No. 3, and New York Printing Pressmen's Union,
Local No. 2. The agreements cover employees in the circulation
department, the mail room and delivery room, the composing room,
building service and maintenance department, the photoengraving
department, the stereotype department, and the pressroom. The
Guild does not claim to represent employees who are members of
any of the foregoing organizations. The Guild would, however,
include in its unit two boys in the photoengraving department and
one boy in the stereotype department, on the ground that they are
not covered by the existing contracts of the craft organizations.
None of the craft organizations having contracts with the Company
claimed that any of these employees is covered by their contracts
with the Company or that the claim of the Guild impinged upon
their jurisdiction. We find that they are not covered by any existing
craft contracts.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By stipulation, the Guild conceded that William Pitt, employed in
the circulation department, and David Greenstein , of the Eagle Press,
properly belong in the group covered by the Mailers' contract, since
they are members of the Mailers' Union and have designated it to
represent them. The Guild also stipulated with the Machinists' Union
that two machinists in the building and maintenance department are
covered by a contract between the Company and the Machinists'
Union and that they should be excluded from the unit claimed by the
Guild. The Guild would further exclude those employees in the
building and maintenance department who are covered by a contract
between the Company and the International Brotherhood of Electri-
cal Workers Union and the International Union of Operating Engi-
neers. The Guild also stipulated with the Pressmen's Union that
Patrick Furey and Frank Woodruff belong to an auxiliary union of
the Pressmen's, have been bargained for by that organization, and
should be excluded from the unit claimed by the Guild. We accept
these stipulations.
The Company is in accord with the Guild to the extent that it has
no objection to a unit generally founded on an industrial basis. The
Company and the Guild agreed to the exclusion of part-time em-
ployees, route boys, and space-writers, from such a general unit, since
they are ineligible to membership in the Guild. The Company would
also exclude from such a unit a number of employees claimed to be
executives, but the Guild would include them. These latter employ-
ees will be discussed below.
As noted above, there was in effect at the time of the hearing a
contract between the Company and the Federal Locals acting jointly.
This contract generally covered employees in the maintenance, Home
Guild, News Room, business, circulation, credit, and advertising de-
partments; excluding department heads, direct assistants to the pub-
lisher, secretaries to the publisher, general manager, officers of the
corporation, editor, managing editor, and general manager. The
Federal Locals, however, made no contentions as to the appropriate
unit or units. In any event, it is apparent that the Guild claim for
a generally industrial unit is not rebutted by the bargaining history
represented by this contract. The contract does not purport to dis-
tinguish between the various departments, but generally makes the
same provisions as to wages, hours and working conditions for all
employees covered thereby. Nor does the jurisdiction of the Federal
Locals indicate that there is any logic in dividing the various de-
partments into separate units. Thus, the Office Local takes in stenog-
raphers and others in the advertising department, although there is
an Advertising Local. The Circulation Department Local, on the
other hand, takes in office boys. In general, neither the jurisdiction
BROOKLYN DAILY EAGLE 981
nor the bargaining history'of the Federal Locals establishes that the
unit sought by the Guild is inappropriate.
The operations of the Company correspond, in a general way, to
those of other newspaper publications which we have considered.4
It is sufficient to say that the record in this case shows that the vari-
ous departments, editorial, advertising, production, circulation, and
business, are functionally interdependent and must be coordinated
for the satisfactory operation of the business. The record also shows
that there exists a community of interest among the employees in
all the departments.
The metropolitan newspaper business is such that promptness in
the collection of news and production and distribution of newspapers
is vital. "Dead-lines" for the various departments are timed to syn-
chronize all operations in order that each edition may contain the
latest news possible. Although each department is administratively
separate, all are functionally interdependent. A shut-down in any
department, resulting from a labor dispute, would in all likelihood
cause a suspension of publication, or at least cripple the operations
of the other departments.
It was, established at the hearing that various locals of the Guild
have executed single contracts with publishers covering both editorial
and commercial employees. The executive secretary of the Guild
testified that the Guild has concluded with 19 other papers agree-
ments which include both editorial and commercial employees. It
was also established that since December 1937 the Guild has executed
single contracts with the Company covering both editorial and com-
mercial employees. In the light of the above facts, it is apparent that
a unit generally composed 'of all the employees of the Company,
excluding the employees in the craft unions covered by contracts, is,
appropriate in this case. We shall proceed to consider several spe-
cific classes of employees, since it is necessary to define the unit more
precisely.
Stencil csnd blotter clerks
Included in the circulation department are two stencil and blotter
clerks. The principal work of the stencil clerks is the preparation of,
mailing lists. The blotter clerks arrange the orders for delivery to
distributors outside the city, keeping records of the number of papers
so shipped. The blotter clerks also revise the blotters, or address
books, so that proper labels may be printed for the mail room.
The Mailers' Union claims jurisdiction over the stencil and blotter
clerks by virtue of the eligibility clauses of its constitution, which
4 Matter of Daily Mir, or, Inc. and The Newspaper Guild of New York, 5 N. L. R. B. 362 ;
Matter of New York Evenung Journal, Inc. and Newspaper Guild of New York, 10
N. L. R. B. 197.
187930-39-vol 13-63
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
generally covers all mailing functions and specifically covers,stencil
and blotter clerks if over 21 years of age. At the hearing the repre-
sentative of the Mailers' Union stated that its contract, with ' the
Company does not include these clerks and that it has never been
successful in its attempts to negotiate on their behalf. They do not
receive the Mailers' Union wage, scale. Moreover, the Mailers' Union
stipulated that it had no members among the stencil and blotter
clerks. The Guild desires to include these employees in the industrial
unit, and under the circumstances we find no reason to exclude them.
We will include them in the general bargaining unit.
Return-room clerks
Employed in the business department are two return-room clerks,
who count the newspapers returned by the dealers and distributors
and credit these returns to the route men and to the accounts of the
dealers . The exclusion of clerks from the industrial unit is desired
by the Mailers ' Union and by the N. M. D. U. The Guild would
include the clerks in the industrial unit.
(a) The contention of the Mailers' Union
The eligibility provisions of the Mailers' Union specifically include
these return-room clerks. Its contract with the Company, however,
does not provide for them. The Mailers' Union stipulated that it had
no members among the return-room clerks. It appears from the
testimony at the hearing that the Mailers' Union has bargained with
the Company for more than 15 years and has never been successful
in bargaining on behalf of the return-room clerks. We conclude that
the Mailers' Union has failed to submit sufficient evidence in support
of its claim.
(b) The contention of the N. M. D. U.
Although the N. M. D. U. claims jurisdiction over these clerks,
there is no specific provision for their eligibility in the N. M. D. U.
constitution. At the hearing the N. M. D. U. stipulated it had no
members among these employees and that its contract with the Com-
pany does not include them. We find that the N. M. D. U. has failed
to establish that the return-room clerks should be excluded from the
general bargaining unit.
In view of the fact that these clerks have not been negotiated for
by, and have expressed no desire to be represented by, these two
unions, we shall include the return-room clerks within the general
bargaining unit.
BROOKLYN DAILY EAGLE 983
City inspectors
There are seven inspectors in the circulation department. Their
duties include the maintenance of contacts with and supervision
over newsstands, the reporting of circulation in the various localities,
and the checking of the work of the route men. This group is
claimed by the N. M. D. U., whose constitution expressly provides for
eligibility of inspectors. The N. M. D. U. stipulated, however, that
it has no members among the inspectors. The N. M. D. U. has at-
tempted to negotiate for these employees in a number of contracts
concluded with the Company, but no express terms and conditions
covering this group have yet been obtained. The record shows that
one employee who was formerly an inspector was and is a member
of the, Guild.
We are of the opinion that the question of the proper unit in which
the inspectors belong should be determined by the desires of the
men themselves. We will, therefore, direct that an election be held
among the inspectors employed by the Company to determine
whether they desire to be represented by the Guild or by the
N. M. D. U. for the purposes of collective bargaining, or by neither.
If a majority of the inspectors vote for representation by the Guild,
they will be included in the general unit. If a majority vote for
representation by the N. Al. D. U. or if a majority vote for repre-
sentation by neither the Guild nor the N. M. D. U., they will be ex-
cluded from the general unit.
Composing -room boys
The Company's pay roll includes approximately 17 composing-
room boys who move galleys of type about , pull proof from the news
and advertising presses, and run errands in the composing room.
Functionally the composing-room boys are much closer to the com-
positors than to any other class of employees . Composing-room
boys are ineligible to join the Typographical Union, however, unless
they become apprentices and undergo a long training. The record
does not indicate that any of these employees have ever become ap-
prentices . They are not covered by the contract between the Typo-
graphical Union and the Company . Nearly all the composing-room
boys are members of the Guild . The Typographical Union was
served with notice of hearing , but did not appear thereat to dispute
the inclusion of this group in the general unit. We shall , therefore,
include the composing -room boys in the general unit claimed:by the
Guild.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Eagle Press
The Company urges the exclusion from the general unit of em-
ployees on the Eagle Press pay roll on the ground that they are not
connected with the working force of the newspaper. These em-
ployees include general office workers, composing-room boys, a proof-
reader, and salesmen engaged in selling printing. The Eagle Press
is engaged in the job-printing business. Both the job-printing busi-
ness and newspaper publishing are located in the same building and
operated by the Company. The record shows that a single superin-
tendent of printing supervises all printing for both the Company
and the Eagle Press. It also appears that employees of the business
department of the Company perform bookkeeping and accounting
work for the Eagle Press. In addition, the record indicates that the
Eagle Press is owned by, and is carried on as a department of, the
Company. At the hearing the Guild claimed that these employees
are eligible to join the Guild and that a number of them have be-
come active members. We will, therefore, include them in the gen-
eral bargaining unit.
Other exclusions sought by the Company
The Company and the Guild are in conflict concerning the pro-
priety of including certain named employees whom the Company
claims are executives and should be excluded from the general unit.
The Guild, while stating in its petition that executives should be ex-
cluded, took the position that these employees were "sub-executives"
and should be included in the general unit. The Board has in the
past adopted the general policy of including in the appropriate unit
minor supervisory employees where they are members of or eligible
for membership in the claiming union, and the union, without oppo-
sition of a rival union, wishes them included. While this rule is in
general applicable in the present case, special problems arise from
the nature of a newspaper plant where there are many subdepart-
ments which are partially autonomous. Thus, certain supervisory
employees on a newspaper differ from strawbosses or assistant fore-
men in industrial plants. While the latter act as management repre-
sentatives in relation to employees working under them, they do not
customarily have charge of separate and distinct departments. Some
of the individuals in controversy here, however, have more or less
complete charge in the management or arrangement of their par-
tially autonomous departments. We, therefore, think that they
should be excluded from a unit in which their subordinates are found,
even though the Guild wants them included. With these general
BROOKLYN DAILY EAGLE 985
principles stated, we shall proceed to a brief discussion of the indi-
viduals over whom there is contention e.
John A. Cleary is the manager and head of the local advertising
department, a subdivision of the advertising department. The local
advertising department consists of three employees over whom
Cleary has charge. Cleary has no power to hire or discharge but
does have power to make such recommendations. Since the local
.advertising department is a subdepartment over which Cleary has
control, it is clear that his recommendations would bear great weight.
We shall exclude him from the appropriate unit.
G. Worthington is the head of the Nassau advertising department,
a subdepartment of the advertising department. Worthington him-
self constitutes the entire subdepartment and is a member of the
Guild. We shall include him in the appropriate unit.
Samuel Hecht is the manager of classified display, a subdepart-
ment of the advertising department. There are 9 or 10 persons in
his department. His position: is similar to Cleary's and we shall,
therefore, exclude Hecht from the appropriate unit.
John E. Dean is the Chicago advertising manager. -Irving Kauf-
man, a reporter for the Company and the chairman of the Guild unit
at the Company, testified that Dean had two persons under him in.
his department. In an affidavit filed after oral argument, the Guild,
through Milton Kaufman, its general secretary, stated that the
Chicago advertising department consisted solely of Dean and a secre-
tary. In the absence of further evidence, and for reasons similar to
those pertaining to Cleary, we shall exclude Dean from the appropri-
ate unit.
Margaret Pettigrew is manager of the Home Guild, a subdepart-
ment of the advertising department. Irving Kaufman testified that
Pettigrew's "department is not large enough and her authority is
not absolute enough." She is a member of the Guild, has several
employees in her department, and makes recommendations concern-
ing hiring and discharging. We shall exclude Pettigrew from the
appropriate unit.
Helen Brown is the society editor with two employees under her.
Irving Kaufman testified that Brown is "not in a position that
carries the function of hiring and firing in any large capacity."
H. H. Clarke is the financial editor with one employee under,him.
James Wood is the sports editor with several persons working under
$ The Company and the Guild agreed on the exclusion of the publisher and his secre-
tary, the secretary-treasurer and his secretary , the editor , the managing editor of the
-editorial department , the city editor of the editorial department, the managers of (a)
the display advertising department , (b) the classified undisplay department, and (c) the
circulation department , two building superintendents , the manager of the Eagle Press,
and the sales manager of the Eagle Press.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him. Each of these three supervisory employees heads a subdepart-
ment; each suggests hiring and discharging. In a previous case,e we
have excluded the sports editor and the financial editor under similar
circumstances . We shall exclude Brown , Clarke , and Wood from the
appropriate unit.
Al Delaney and Bernice Epstein are, respectively , the secretaries
to the managing editor and editor . Their work is of a confidential
nature. We take notice of the fact that in negotiating and in other
dealings concerning grievances , the interests of a union and the man-
agement are ordinarily adverse . The nature of a personal secretary's
work is such that much of the confidential material pertaining to the
management passes through his or her hands . We believe that the
management should not be required to handle such material through
employees in . the unit represented by the union with which it is
dealing . We shall, therefore , exclude as confidential secretaries Al
Delaney and Bernice Epstein from the appropriate unit.'
Vincent Sheridan is the auditor of the Company , in charge of its
books. He has no power to hire or discharge , but is assisted by four
clerks. His immediate superior is the business manager , and the
Company makes no claim that his work is of a confidential nature.
Unlike the other subexecutives discussed above , it does not appear
that Sheridan 's is a separate subdepartment at all . We shall , there-
fore , include Sheridan in the appropriate unit."
Mary Haw e is the chief telephone operator in charge of six pr
seven telephone operators in the classified advertising department.
The Company claimed she has the power to hire and discharge. Irv-
ing Kaufman testified that Haase has "no outright" power so to do.
It is evident that Haase is chief of her small staff , and we shall.
therefore , exclude her from the general unit.
Hubert Davies is the credit manager. Neither the precise nature
of his duties nor the existence of any staff working under him ap-
pears from the record . He works under the business manager and
has no power to hire or discharge employees. We shall include him
in the appropriate unit.
"Doe" Rankin is an editorial page cartoonist . John Heffernan is
a columnist. Neither has any supervisory duties or is in any way'
an executive. Neither has any employees working directly under
Matter of New York Eveninq Journal, Inc and Newspaper Guild of New York, 10
N. L. It. B. 197.
a But cf. Matter of Indianapolis Times Publishing Company and The Indianapolis News-
paper Guild, 8 N. L R . B. 1256, where the secretaries to the circulation and advertising
managers were included . These managers , however, are not at the top of the hierarchy
which has the ultimate power of management and duty to deal with the union . In this
respect they differ from the managing editor and editor here involved.
8In Matter of Milwaukee Publishing Company and Milwaukee Newspaper Guild (C. I 0 ),
10 N. L R. B. 389, the general ledger bookkeeper was included in the appropriate unit
BROOKLYN DAILY EAGLE 987
him. We shall include Rankin and Heffernan in the appropriate
unit.
There are also several unnamed employees whom the Company
would exclude as executives. In the absence of conflicting evidence,
we shall accept the statements concerning them as contained in
Milton Kaufman's affidavit for the purposes of the following
discussion.,
The feature editor is not an executive but "merely passes on some
assignments and reads copy on feature news." The feature editor is
generally included in Guild contracts. We shall, therefore, include
the feature editor in the appropriate unit.
The Company lists the "news editor" as an employee whom it
would exclude. The Guild's affidavit states there is no such person.
In the absence of further evidence, we will not pass on the t'Com-
pany's contention with respect to the news editor, if indeed there
is one.
Assistant city editors, although possessing power to make recom-
mendations concerning hiring and discharging, are immediately sub-
ordinate to the city editor, and are themselves in charge of no
subdepartment. They are ordinarily included in Guild contracts.
We shall, therefore, include them in the appropriate unit.
The librarian chief has four persons working under her, but has
no outright power to hire or discharge. The evidence concerning
this position is meager, but in the absence of any showing that the
librarian chief differs from the other heads of small departments,
we shall exclude her from the appropriate unit.
The real estate editor, according to the Guild affidavit, "reports
on real estate matters; no other person working with him or under
him." He shall be included in the appropriate unit.
The secretary to the advertising manager, the secretary to the
classified advertising manager, and the secretary to the circulation
manager perform ordinary secretarial work. There is no evidence
that their work is confidential in the sense that the work of the
secretaries to the heads of the newspaper is confidential. They shall,
therefore, be included in the appropriate unit.,
The promotion manager of display advertising is the head of a
subdepartment with three persons under him. The manager of the
publication department, a subexecutive in the display advertising
'department, has 13 employees under him. Neither has "absolute"
power to hire and discharge, but both head small departments. We
shall, therefore, exclude them from the appropriate unit.
The legal advertising manager has no person working under him
and shall be included in the appropriate unit. The assistant man-
See footnote 7 above.
988 DECISION S OF NATIONAL LABOR RELATIONS BOARD
ager of classified undisplay and the assistant manager of circulation
are subdepartment assistants. They fall within the category of
minor supervisory employees who do not themselves head any group
of employees. They shall also be included in the appropriate unit.
There are two home delivery managers whom the affidavit describes
as "sub-executives with some slight power to `suggest' firing and pos-
sible hiring." There is no further evidence concerning their actual
duties. In the absence of any showing that they are heads of small
departments, we shall include them in the appropriate unit.
There are eight "supervisors" who supervise the branch managers.
Each supervisor has four branch managers under him. They do
the same work as branch managers in addition to their supervising
duties and receive a slightly higher wage than the branch managers.
They are described in the affidavit as not "real `executives'." Since
it appears, however, that they are heads of small groups of employees,
we shall exclude them from the appropriate unit.
We find that all the employees of the Company, including those
listed in Appendix A, attached hereto, and excluding employees
who are covered by contracts between the Company and craft'unions,
and those listed in Appendix B, annexed hereto, and including or
excluding the inspectors in the circulation department depending
upon the results of the election to be directed, constitute a unit
appropriate for the purposes of collective bargaining and that said
unit will insure to such employees of the' Company the full benefit
of their right to self-organization and will otherwise effectuate the
policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
During the course of the hearing, the Company's pay-roll lists
as of October 22, 1938, and December 10, 1938, showing the names of
employees of the Company classified according to their work, were
introduced in evidence. Each pay roll contains substantially the
same number of employees. The pay-roll lists established that there
are approximately 460 persons employed by the Company within the
classifications comprising the appropriate unit. The Guild intro-
duced in evidence the application cards for membership in the Guild
of 288 employees in the appropriate unit. In addition, it introduced
in evidence, 26 petitions signed between December 9 and December
30, 1938, by 270 of these employees designating the Guild as their
bargaining representative. The authenticity of these signatures was
not disputed. The Guild seeks certification on 'the record, without
an election, on the basis of this showing. •
BROOKLYN DAILY EAGLE 989
As noted above, there was in existence at the time of the hearing
a contract between the Company and the Federal Locals acting
jointly. We have already pointed out that the Federal Locals made
no claim as to appropriate unit or units, contenting themselves with
as assertion that there was no genuine question concerning repre-
sentation.10 Neither did the Federal Locals take any position on
the question of whether the Guild should be certified on the record,
if their unit claims were upheld, or whether there should be an' elec-
tion by secret ballot. Although the contract between the Federal
Locals and the Company covers several categories of employees who
are within the unit we have found appropriate, there is no complete
showing in the record as to the membership of the Federal Locals
within the unit. Two of the Federal Locals introduced no proof of
membership.h1 American Federation of Bookkeepers, Stenographers,
& Accountants' Union, Federal Local No. 20940, introduced in evi-
dence membership cards signed by 49 employees within the appro-
priate unit. American Federation of Newspaper Circulation
Employees Union, Federal Local No. 21682, introduced in evidence
membership cards signed by 61 persons. Three of these cards were
subsequently withdrawn; 24 appear to have been signed by route
boys who are not within the unit; and of the 34 cards remaining, 22
of them are disclosed to have been signed by persons whose names
are not included on the December 10, 1938, pay roll. There appears
to be only one duplication between the cards introduced by the
Federal Locals and the cards and petitions introduced by the Guild.
Considerable time has elapsed between the hearing and the issu-
ance of the Decision. We feel that the purposes of the Act can best
be effectuated by ordering an election to determine the present desires
of the employees regarding a bargaining representative. The record
does not reveal whether or not the Federal Locals want to be on the
ballot opposed to the Guild. We will provide that the employees
may vote for the Guild or the American Federation of Labor or
neither. If the A. F. of L. notifies the Board within 5 days that it
desires its name stricken from the ballot, we will amend our Direction
accordingly.
Those eligible to vote in the 'election will be employees within the
appropriate unit whose names appear on the Company's pay roll
immediately preceding the Direction of Election, including employees
who did not work during such pay-roll period because they were in
or on vacation and employees who were then or have since been
temporarily laid off. The same eligibility provisions will govern the
w This contention is disposed of in Section III above.
u American Advertising Associates Union , Federal Local No. 21627 , and American
Federation of Editorial & News Writers Union, Federal Local No. 21681.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election to be directed among the inspectors, except that the inspec-
tors will vote for the Guild, the N. M. D. U., or neither.
Upon the basis of the above findings of fact and, upon, the. entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Brooklyn Daily Eagle, Brooklyn, New
York, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. All the employees of the Company, including those listed in
Appendix A, attached hereto, and excluding executives, employees
who are covered by contracts between the Company and craft unions,
and those listed in Appendix B, annexed hereto, and including or
excluding inspectors in the circulation department depending on the
results of the election ordered herein, constitute a unit. appropriate
for the purposes of collective bargaining, within the, meaning, of
Section 9 (b) 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 2,
it 'is hereby
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for collective bargaining with
Brooklyn Daily Eagle, Brooklyn, New York, 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 Second 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 those employees of
Brooklyn Daily Eagle who fall within the groups described below
whose names appear on the Company's pay roll immediately preced-
ing the Direction of Election, including employees who did not work
during such pay-roll period because they were ill or on vacation and
employees who were then or have since been temporarily laid -of,
excluding those who have since quit or were discharged for cause :
'(a) City inspectors in the circulation department, to determine
whether they desire to be represented by Newspaper Guild of New
York, or by Newspaper and Mail Deliverers' Union, for the purposes
of collective bargaining, or by neither;
BROOKLYN DAILY EAGLE 991
(b) All other employees of the Company, including those listed
in Appendix A, attached hereto, excluding executives, employees who
are covered by contracts between the Company and craft unions, and
those listed in Appendix B, annexed hereto, to determine whether
they desire to be represented by Newspaper Guild of New York, or
by American Federation of Labor, for the purposes of collective bar-
gaining, or by neither.
APPENDIX A
G. Worthington-Nassau advertising department.
Vincent Sheridan-auditor.
Hubert Davies-credit manager.
Doe Rankin-editoral page cartoonist.
John Heffernan-columnist.
]Y%ature editor.
Assistant city editors.
Real estate editor.
Secretary to advertising manager.
Secretary to classified advertising manager.
Secretary to circulation manager.
Legal advertising manager.
Assistant manager of classified undisplay.
Assistant manager of circulation.
Home delivery managers (2).
Two boys in photo-engraving department.
One boy in stereotype department.
Stencil and blotter clerks.
Return room clerks.
Composing room boys.
Eagle Press employees.
APPENDIX B
John Cleary, manager local advertising department.
Samuel Hecht, manager classified display.
John E. Dean, Chicago advertising manager.
Kenneth Reynold, manager Suffolk County advertising.
Margaret Pettigrew, manager Home Guild.
Helen Brown, society editor.
H. H. Clarke, financial editor.
James Wood, sports editor.
Al Delaney, confidential secretary to managing editor.
Bernice Epstein, confidential secretary to editor.
Mary Haase, chief telephone operator.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chief librarian.
Promotion manager of display advertising.
Manager of publication department.
Supervisors of branch managers (8).
Part-time employees.
Space writers..
Route boys.
Publisher and his secretary.
Secretary-treasurer and his secretary.
Editor.
Managing editor of the editorial' department.
City editor of the editorial department.
Manager of the display advertising department.
Manager of the classified undisplay department.
Manager of the circulation department.
Two building superintendents.
Manager of the Eagle Press.
Sales manager of the Eagle Press.
MR. WILLIAM M. LEIsRSOx took no part in the consideration,of the
above Decision and Direction of Elections.