Cincinnati Daily Newspapers Publishers Association

National Labor Relations Board - Board Decisions

Mar 18, 1944

55 N.L.R.B. 571 (N.L.R.B. 1944)

In the Matter Of CINCINNATI DAILY NEWSPAPER PUBLISHERS ASSOCIA-
TION and CINCINNATI MAILERS' UNION No. 17 AN AFFILIATE OF THE
INTERNATIONAL MAILERS' UNION OF NORTH AMERICA 1
Case No. 9-R-194.-Decided March 18, 1944
Mr. Thomas E. Shroyer, for the Board.
Frost cC Jacobs, by Mr. Cornelius J. Petrhold, of Cincinnati, Ohio,
for the Association.
Mr. Edward J. Fillenwarth, of Indianapolis, Ind., for the I. M. U.
Messrs. C. M. Baker and Thomas A. Holland, of Indianapolis, Ind.,
for the I. T. U.
Mr. Irving Rogosin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Cincinnati Mailers' Union No. 17,
an affiliate of the International Mailers' Union of North America,
herein called the I. M. U., alleging that a question of affecting com-
inerce had arisen concerning the representation of employees of mem-
bers of Cincinnati Daily Newspaper Publishers Association, Cincin-
nati, Ohio, herein called the Association, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Robert F. Koretz, Trial Examiner. Said hearing was held at Cin-
cinnati, Ohio, on January 10, 1944. At the commencement of the
hearing, the Trial Examiner granted a motion of International Typo-
graphical Union, an unaffiliated labor organization, herein called the
I. T. U., to intervene. The Association, the I. M. U., and the I. T. U.,
appeared and participated. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
P During the course of the bearing , the Trial Examiner granted a motion of the peti-
tioner to amend the petition and all other formal papers by adding after the name Cin-
cinnati Maile, s' Union No. 17 the words. "an affiliate of the International Mailers' Union
of North America," and by substituting the same for the words, "an affiliate of the Inter-
national Typographical Union" appearing in the body of the petition, after the name
of the local
55 N L. R B., No. 103.
571
572 DECISIONS OF NATIONAL L1BOR RELATIONS BOARD
introduce evidence bearing on the issues. The Trial Examiner's rul-
ings made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded opportunity to file briefs
with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
Cincinnati Daily Newspaper Publishers Association is a voluntary
association comprised of three apparently independently owned news-
papers in Cincinnati, Olio, namely: The Cincinnati Enquirer, The
Cincinnati Times-Star, and The Cincinnati Post. The Association
has been in existence for over 20 years for the purpose of representing
these newspapers in collective bargaining with unions organized on a
craft basis.2
All three newspapers have a daily circulation in excess of 125,000,
including circulation outside the State of Ohio, use interstate news
services and carry national advertising. Together they employ a
total of approximately 70 employees in the unit hereinafter found to be
appropriate.
The Association admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Cincinnati Mailers' Union No. 17,' an affiliate of the International
Mailers' Union of North America, is a labor organization admitting
to membership employees of members of the Association.
2 While the record does not disclose that the newspapers here involved are competitors,
this fact is more than likely It is not altogether clear to what extent the Association
has authority to bind the newspapers in collective bargaining In actual practice, both the
Association, and the newspapers individually, were signatoues to agreements entered into
with the I T. U. Local, and no contract was executed until all the newspaper companies
were in compete accord In view of the long established practice of collective bargaining
on this nmltiple-employer basis, the adherence of the employees as well as the companies
to this method of collective baigaining, and the further fact that the issue was not raised
by any of the patties at the lreaung, we are not constuuned to question the propriety of
the multiple-employer unit. See Matter of Rayonicr Incopo ated, Grays Harbor Division,
52 N L. R B 1269 and cases cited therein
"There are 2 local organizations, each bearing the identical name, Cincinnati Mailers'
Union No 17 They have the same officers, substantially the same membership, use the
same meeting place, but conduct their meetings separately Meetings of the one local
follow those of the other almost immediately The I _li U which was formed as a conse-
quence of a convention of mailers held in June 1943, has chartered about 25 local unions
including the petitioner, heiein called the I M U Local, to distinguish it trom the local
of the same name, affiliated with the I T U , herein called the I T U. Local The appar-
ent reason Lot the retention of membership in the I T U Local was to preserve certain
pension, inoituany and insurance benefits accruing by reason of affiliation with the I T. U.
international. While the I T U contended at the hear mg that the I M U was, in
effect, a "secessionist movement" and an attempt on the part of the local to evade its
CINCINNATI DAILY NEWSPAPER PUBLISHERS ASSOCIATION 573
International Typographical Union, unaffiliated, is a labor organi-
zation admitting to membership employees of members of the Associ-
ation.
III. THE QUESTION CONCERNING REPRESENTATION
On July 13, 1943, the Association entered into a closed-shop contract
with Cincinnati Mailers' Union No. 17, a subordinate union of the
I. T. U., herein called the I. T. U. Local. This contract was to run
from December 8, 1942, to December 7, 1943, and from year to year
thereafter, unless either party wished to propose a new contract or
amendment thereto, in which case it was required to give notice not
less than 60 days prior to December 7, accompanied by the proposed
new contract or written amendment. Upon the giving of the required
notice, the proposed contract or amendment was to be referred to a
Standing Committee comprised of representatives of the Association
and the employees, and in the event of failure of the Standing Com-
mittee to reach unanimous agreement among themselves, the parties
were to proceed to arbitration in accordance with the provisions of the
contract. Meanwhile, the contract was to remain in full force and
effect until a new contract was executed, either by agreement, or as the
result of arbitration.
On October 4, 1943, more than 60 days prior to the original expira-
tion date of the contract, the I. T. U. Local wrote to the Association
submitting a proposal for a new contract.4 The proposed contract
recited the navies of the parties as the Association and the I. Al. U.
Local. During November, conferences were held between representa-
tives of the Association and the local union, in the course of which it
became evident that the local union representatives sought to have
the contract executed on behalf of the I. M. U. Local, rather than the
I. T. U. The Association questioned the status of the I. M. U. Local
as the exclusive bargaining representative, and on November 20, 1943,
wrote the President of the Cincinnati Mailers' Union No. 17, that it
would require certification by the Board before it would consummate
a contract with an organization other than the I. T. U. Thereafter,
on or about November 22, 1943, all but one of the employees covered
by the original contract signed a petition designating the I. M. U.
responsibility under the I T U contract , theie was no serious contention that the I Al U,
or its local , is not a labor organization within the m,rinmg of the act See Matter of Atlas
Powder Company , Zapon Dib,szaa , 43 N L R B 757 Moreover , minutes of the pioceed-
ings of the convention which resulted in the formation of I M U , introduced in evidence,
as well as testimony adduced at the healing, sufficiently establish the status of both the
I M U and the I M U Local as labor organizations
4 This letter , on the letterhead of "Cincuiuati Mailers' Union No 17" and signed by the
Acting Secretary , made no reference to affiliation with etthei the I T U or the I M U.
The person acting as President of both the I T U. and the I M. U Locals testified that
this notice was sent on behalf of the I . T U Local.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local as their bargaining, agent.' On November 22, 1943, the petition
was filed in this proceeding.
The I. T. U. contends that the contract covering the period from
December 8, 1942, to December 7, 1943, is still in effect and constitutes
a bar to these proceedings. While conceding that the notice of Octo-
ber 4, 1943, proposing a new contract was in accordance with the then
existing contract, the I. T. U. contends that the failure of the I. T. U.
Local to refer the proposed new contract to the Standing Committee
and, thereafter, to arbitration leaves the contract in effect by virtue
of the provision : "This contract shall continue in full force and effect
until a new contract is made, either by agreement or arbitration."' The
Association takes no position on this issue.
It is conceded that the notice of October 4, 1943, was seasonably
given and prevented the automatic renewal provision in the contract
from taking effect. Assuming, without agreeing, in favor of the
1. T. U., that the contract continued in effect by virtue of the provision,
above quoted, it is clear that it would continue to operate for a period
of indefinite duration, and hence would be no bar to this proceeding.
We find that the contract is no bar to this proceeding.
A statement of the Board agent introduced into evidence at the
hearing indicates that the I. M. U. Local represents a substantial num-
ber of employees in the unit hereinafter found appropriate.B
We find that a question affecting commerce has arisen concerning
the representation of employees of members of the Association within
the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The I. M. U. Local contends that the appropriate unit consists of all
mailers working at The Cincinnati Enquirer, The Cincinnati Times-
Star, and The Cincinnati Post, including foremen, assistant foremen,
apprentices, and journeymen.7 This is the unit embraced in the last
contract between the I. T. U. and the Association and in previous
contracts. The I. T. U. contends that all union mailers in the city of
Cincinnati constitute an appropriate unit, but offered no evidence in
support of its contention. The Association took no position with
respect to the unit. All parties agree that foremen and assistant fore-
6 A foreman was the only employee who declined to sign the petition, because of his
supervisory position Seventy -one employees , including 6 apprentices , signed the petition.
O The Field Examiner reported that the I It. U Local submitted evidence in support of
its allegation that it represents 65 employees in the allegedly appropriate unit This evi-
dence consisted of "Secretary ' s Monthly Itemized Report" for the month of October 1943 ;
65 of the names appearing on this report appeared on a list of 69 employees , the total
number within the appropriate unit on December 8, 1943.
7 "Mailers" were defined , in part , as all employees performing the following work : stamp-
ing, counting, wrapping , inserting , pasting, " tieing," marking, spreading wrappers , tagging,
sacking, correcting and proving mailing galley sheets , cutting and pasting mail lists, and
routing
CINCINNATI DAILY NEWSPAPER PUBLISHERS ASSOCIATION 575
men should be included within the unit, although such employees have
authority to hire and discharge, or effectively recommend such action,
on the ground that they have been traditionally included within the
bargaining unit in the industry 6 and have been covered by collective
bargaining contracts since 1904. The most recent contract provided
that "each office shall have a foreman who shall be a member in good
standing of the Union." The appropriateness of the unit contended
for by the I. M. U. Local is demonstrated by a long and apparently
successful history of collective bargaining.9
We find that all mailers employed by the members of the Associa-
tion, including foremen, assistant foremen, apprentices, and journey-
men, constitute a unit appropriate for the purposes of collective bar-
gaining 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.
In addition to about 00 regular employees or "situation holders,"
there are approximately 12 "substitute" or "extra" employees who are
frequently called, by "situation holders" to replace them on their clays
off or other absences from work, or by the newspapers themselves, when
the increase in the volume of work at any of the 3 newspapers war-
rants it 10 No problem is presented as to the eligibility to vote of such
of these "substitute" or "extra" employees, as are regularly employed as
situation holders." The 12 "substitute" or "extra" employees are
union members, and the only persons other than the "situation hold-
ers" working for these newspapers as mailers. They spend about half
their time and about half as much time as the "situation holders," at
such work.11 The I. T. U. urges that these employees be eligible to
vote, the I. M. U. Local raises no objection to their eligibility. The
Association, while indicating its preference for restricting eligibility
to "situation holders," by reason of the fact that at least some of the
12 "substitute" or "extra" employees are regularly employed elsewhere
8 See Matter of W. F. Hall Printing Company, 51 N L It. B 640; Matter of Service
Printers , Incorporated , 54 N L R B 1082.
8 The record discloses that mailers have been recognized in the industry as a craft for
nearly 50 years.
10 Some "substitute" or "extra" employees are fiequently regular "situation holders" on
one or the other newspapers
"The substantial amount of time worked by tnese employees is explained by the fact that
regular employees work a 5-day week pursuant to the contract, while t so of the newspapers
operate on a 6-day basis, and the third, on a 7-day basis.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by commercial printers, makes no strenuous objection to their being
permitted to vote.
In view of the fact that these approximately 12 "substitute" or
"extra" employees are included within the unit, work a considerable
portion of their time for one or more of the 3 newspapers involved, and
are governed by the term- of the contract, we find that they constitute
part-time employees regularly employed by members of the Associa-
tion and that they should, therefore, be eligible to vote in the election 12
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 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Cincinnati Daily
Newspaper Publishers Association, Cincinnati, Ohio, as representative
of its member employers an election by secret bal lot shall be conducted
as early as possible, but not later than thirty (30) clays from the date
of this Direction, under the direction and supervision of the Regional
Director for the Ninth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Sections
10 and 11, of said Rules and Regulations, among the employees in the
unit found appropriate in Section IV, above, who were employed dur-
ing the pay-roll period immediately preceding the date of this Direc-
tion, including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and in-
cluding employees in the armed forces of the United States who present
themselves in person at the polls, but excluding any who have since quit
or been discharged for cause and have not been rehired or reinstated
prior to the (late of the election, to determine whether they desire to
be represented- by Cincinnati Mailers' Union No. 17, an affiliate of the
International Mailers' Union of North America, or by International
Typographical Union, unaffiliated, for the purposes of collective bar-
gaining, or by neither.
12 See, Matter of Wagner Folding Box Co'po)at1on , 49 N. L. R B 346; Matter of New
Idea , Inc, 49 N . L. R B 619