Indianapolis Times Publishing Co.

National Labor Relations Board - Board DecisionsSep 27, 1938

8 N.L.R.B. 1256 (N.L.R.B. 1938)

In the Matter Of INDIANAPOLIS TIMES PUBLISHING COMPANY 1 and THE INDIANAPOLIS NEWSPAPER GUILD Case No. R-862.-Decided September 27, 1938 Newspaper Publishing Industry-Investigation of Representatives : contro- versy concerning representation of employees : controversy concerning appro- priate unit ; employer 's refusal to grant recognition of union prior to certifica- tion by Board-Unit Appropriate for Collective Bargaining: all employees, excluding, among others , employees covered by existing agreements ; similarity of duties-Election Ordered Mr. Colonel C. Sawyer, and Mr. Walter Chel f, for the Board. Baker, Hostetler cf' Patterson, by Mr. Thomas J. Edwards, of Cleveland, Ohio, for the Company. Mr. Francis E. Thomason, of Indianapolis, Ind., for the Guild. Barnes cf Johnson, by Mr. Fred Bates Johnson, of Indianapolis, Ind., for the Intervenors. Mr. Charles Warner, of Indianapolis, Ind., for the Engravers. Mr. Roman Beck, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 21, 1938, The Indianapolis Newspaper Guild, herein called the Guild, filed with the Regional Director for the Eleventh Region (Indianapolis, Indiana) a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Indianapolis Times Publishing Company, Indianapolis, Indiana, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 26, 1938, the Guild filed an amended petition. On June 4, 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 1Indianapolis Times Publishing Company is the correct name of the Company, and a motion to amend all papers filed in this proceeding to conform therewith was grant@d on consent of all parties. 8 N. L. R. B , No. 155, 1256 DECISIONS AND ORDERS 1257 1, as amended , ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On June 15, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the Guild, upon the International Photo Engravers Union of North America, Indianapolis Photo Engravers Union No. 2, herein called the Engravers , a labor organization claiming to represent employees directly affected by the investigation ; upon International Typo- graphical Union , Indianapolis Typographical Union No. 1; upon International Stereotypers and Electrotypers Union, Indianapolis Stereotypers Union No. 38 ; upon International Printing Pressmen and Assistants Union of North America , Newspaper Printing Press- men's Union No. 37 ; and upon Mailers Trade District Union, Indian- apolis Mailers Union No. 10. The five labor organizations last above- named are all affiliated with the American Federation of Labor and are herein collectively called the A. F. of L. Affiliates. On June 22 , 1938, the Guild filed with the Regional Director a second amended petition , copies of which were duly served upon all parties. Pursuant to the notice , a hearing was held on June 27 and 28, 1938, at Indianapolis , Indiana, before Webster Powell , the Trial Examiner duly designated by the Board. The Board , the Company, and the Guild were represented by counsel , the Engravers by its president , and all participated in the hearing . At the beginning of the hearing a group of 60 employees of the Company , herein called the Intervenors, were permitted to intervene . They were represented by counsel and also participated in the hearing . Full opportunity to be heard , to examine and cross -examine witnesses , and to intro- duce evidence bearing on the issues was afforded all parties . During the course of the hearing , the Trial Examiner made several rulings on motions and on objections to the admission of evidence and with the consent of all parties allowed the Guild to file a third amended petition . The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed . The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Indianapolis Times Publishing Company, an Indiana corporation, publishes at Indianapolis , Indiana, the Indianapolis Times, which is a newspaper having an average daily circulation of approximately 1258 NATIONAL LABOR RELATIONS BOARD 83,798 copies. The majority of the stock of the Company is owned by the E. W. Scripps Company, a holding company for the Scripps- Howard chain of newspapers. A part of the Company's gross profit is regularly contributed to a fund to defray the general expense incurred in the management of the Scripps-Howard newspapers. The Company subscribes to and receives news, features, and photo- graphs from the United Press News Service, whose service extends throughout the United States and to foreign countries. The Com- pany's own employees gather news not only in Indiana but also in the District of Columbia. The United Press News Service is entitled to distribute to its subscribers throughout the United States news items gathered by employees of the Company. The Company owns stock in the Scripps-Howard Supply Company and purchases sub- stantial quantities of supplies and materials from it. A substantial amount of the purchases from the Scripps-Howard Supply Company is shipped to the Company from outside of Indiana. During the 6 months preceding the date of the hearing, the Company purchased $60,265.91 of newsprint which was sent to it from States other than Indiana. II. THE ORGANIZATIONS INVOLVED The Indianapolis Newspaper Guild is a labor organization, affil- iated with the American Newspaper Guild and with the Committee for Industrial Organization. The Guild admits to its membership all employees of the Company in its editorial, business, circulation, promotion, or advertising departments, excluding those whose inter- ests are deemed by the Guild to lie with the employer as against the employees. International Photo Engravers Union of North America, Indian- apolis Photo Engravers Union No. 2, is a labor organization, affili- ated with the American Federation of Labor, admitting to its membership photoengravers, and mask-making artists in the Com- pany's employ. III. THE QUESTION CONCERNING REPRESENTATION The Guild has requested 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 has refused to bargain with the Guild prior to certification by the Na- tional Labor Relations Board that it has been designated by a majority of the Company's employees in the appropriate unit. We find that a question has arisen concerning representation of employees of the Company. DECISIONS AND ORDERS 1259 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 communication and commerce among the several States, and tends to lead to labor disputes burdening and obstructing com- munication and commerce among the several States. V. THE APPROPRIATE UNIT The Guild seeks a unit composed of all employees of the Company, excluding executives, confidential employees, station captains, inde- pendent contract haulers, editorial employees covered by an existing contract between the Guild and the Company, and employees covered by five agreements between the Company and the A. F. of L. Affili- ates. A list of employees who it claims would be within the scope of such unit was submitted in evidence. The Intervenors, consisting of approximately 60 employees of various commercial departments of the Company, asked that they be given the right to bargain indi- vidually with the Company or, if that was not possible, that they be permitted "to bargain as a group for members of our group." No showing was made that the employees in that group constituted, in themselves, an appropriate unit. Counsel for the Board introduced in evidence a list of the employees who he stated the Intervenors thought might appropriately be in- cluded within a bargaining unit. Counsel for the Intervenors agreed to the introduction of such list in evidence. The list contains all the names on the list setting forth the claims of the Guild and six additional names. The Guild claims that the six persons are either executives or confidential employees and should therefore be ex- cluded from the bargaining unit. The six employees in question are: Vivian Lang, secretary to the circulation manager; Louis D. Young, an advertising solicitor; Wilbur Metz, a copy writer in the Local Advertising Department, who also handles some of the confi- dential correspondence for the manager of that department; John Cromie, a bookkeeper, who also compiles circulation statistics for the editor and business manager and, in the absence of the circulation manager, is in charge of the circulation department; William Wet- more, the country-circulation manager; and Gilbert Lloyd, the street- sales manager. Lang, Young, Metz, and Cromie perform duties substantially equivalent to those performed by employees whom the Guild desires included in the bargaining unit. Thus the Guild in- 1260 NATIONAL LABOR RELATIONS BOARD eludes a secretary to the circulation manager, advertising solicitors, copy writers, and bookkeepers. The occasional extraordinary work done by Young, Metz, and Cromie is not enough to warrant a finding that they are executives or confidential employees. We shall, there- fore, include Lang, Young, Metz, and Cromie within the unit. Wet- more and Lloyd perform duties of a supervisory nature and have authority to hire and discharge their subordinates after consultation with the circulation manager. They do not have a status similar to that of employees included within the unit. We shall, therefore, exclude Wetmore and Lloyd from the unit. The Engravers asked for the exclusion from the unit of three mask-making artists over whom it claims jurisdiction. The three employees are not covered by the contract between the Company and the Engravers. They are not members of the Engravers and have not designated it to represent them. We shall, therefore, include the mask-making artists within the unit. We find that all the employees of the Company, excluding execu- tives, confidential employees, the country-sales manager, the street- sales manager, station captains, independent contract haulers, edi- torial employees covered by the existing contract with the Guild, and employees covered by the five agreements between the Company and the A. F. of L. Affiliates, respectively, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effec- tuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the time of the hearing, the Company employed 104 employees within the appropriate unit. The Guild introduced in evidence a written authorization signed by 47 of the 104 employees designating the Guild as their bargaining representative. We find, therefore, that an election by secret ballot is necessary to resolve the question concerning representation which has arisen. The persons eligible to vote in the election shall be those within the appropriate unit who were employed by the Company during the pay-roll period next preceding June 27, 1938,2 excluding those who may have since quit or have been discharged for cause. As we have observed, the Intervenors desire to bargain indi- vidually. Their wishes in this respect can be expressed by voting against the Guild in the election. Upon the basis of the above findings of fact and upon the entire record in the case the Board makes the following : % 'The hearing date. DECISIONS AND ORDERS CONCLUSIONS OF LAW 1261 1. A question affecting commerce has arisen concerning the repre- sentation of employees of The Indianapolis Times -Publishing Com- pany, Indianapolis, Indiana, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company, excluding executives, confiden- tial employees, the country-sales manager, the street-sales manager, station captains, independent contract haulers, editorial employees covered by the existing contract with the Guild, and employees covered by the five separate agreements between the Company and the following labor organizations : International Typographical Union, Indianapolis Typographical Union No. 1; International Stereotypers and Electrotypers Union, Indianapolis Stereotypers Union No. 38; International Printing Pressmen and Assistants Union of North America, Newspaper Printing Pressmen's Union No. 37; Mailers Trade District Union, Indianapolis Mailers Union No. 10; and International Photo Engravers Union of North America, In- dianapolis Photo Engravers Union No. 2, constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 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 Re- lations 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 hereby DIRECTED that, as a part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargain- ing with Indianapolis Times Publishing Company, Indianapolis, In- diana, an election 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 Eleventh Region, act- ing in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all employees of the Company who were employed during the pay-roll period next preceding June 27, 1938, excluding executives, confidential employees, the country-sales manager, the street-sales manager, station captains, independent contract haulers, editorial employees covered by the existing contract with the Guild, and em- ployees covered by the five separate agreements between the Com- pany and the following labor organizations : International Typo- graphical Union, Indianapolis Typographical Union No. 1; Inter- 1262 NATIONAL LABOR RELATIONS BOARD national Stereotypers and Electrotypers Union, Indianapolis Stere- otypers Union No. 38; International Printing Pressmen and Assist- ants Union of North America, Newspaper Printing Pressmen's Union No. 37; Mailers Trade District Union, Indianapolis Mailers Union No. 10; and International Photo Engravers Union of North America, Indianapolis Photo Engravers Union No. 2, and further ex- cluding those employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by the Indianapolis Newspaper Guild, affiliated with the American Newspaper Guild and with the Committee for Industrial Organiza- tion, for the purposes of collective bargaining. Mr. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision and Direction of Election.