Milwaukee Publishing Company

National Labor Relations Board - Board Decisions

Dec 9, 1938

10 N.L.R.B. 389 (N.L.R.B. 1938)

In the Matter Of MILWAUKEE PUBLISHING COMPANY and MILWAUKEE
NEWSPAPER GUILD (C. I. 0.)
Case No. R-953-Decided December 9, '1938
Newspaper Pnblish2ng Industr y-Ionestigatio^a of Representatives : contro-
versy concerning representation of employees ' employer questions union 's repre-
sentative status; controversy concerning appropriate unit-Units Appropriate
for Collective Bargaining : elections to determine ; where other considerations
determinative of appropriate unit are evenly balanced , decisive factor is desire
and choice of employees involved-Elections Ordei ed
Mr. William R. Consedine, for the Board.
Mr. Edward G. Woods, of Chicago, Ill., for the Company.
Mr. W. 0. Sonneman, of Milwaukee , Wis., and Mr. Abraham J.
Isserman, of Newark, N. J., for the-Guild. -
Padway, Goldberg c Tarrell, by Mr. A. G. Goldberg, of Mil-
waukee, Wis., for the Office Workers, the Typographical Union, and
the Teamsters.,
Mr. Ivar Peterson, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE -
On May 19, 1938, 'Milwaukee Newspaper Guild,- herein called the
Guild, filed with the Regional Director for the Twelfth Region
(Milwaukee, Wisconsin) a petition alleging that a question affecting
commerce had arisen concerning the representation of employees of
Milwaukee Publishing Company, Milwaukee, Wisconsin, herein
called the Company, and requesting an investigation and certifica-
tion of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On June 30,
1938, the National Labor Relations Board, herein called the Board,
acting pursuant to Section 9 (c) of the Act and Article III, Section
3, of National Labor Relations Board Rules and Regulations-Series
1, as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice.
On July 7, 1938, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon the Guild,
10 N. L . R. B , No. 29. 389
147841-'l' -vol 10---26
.390 NATIONAL LABOR RELATIONS BOARD
upon Office Workers' Union No. 16456, herein called the Office Work-
ers, upon Auto Truck Drivers' Union, Local 347, International
Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of
America, herein called the Teamsters, and upon Milwaukee Typo-
graphical Union No. 23, herein called the Typographical Union, all
labor organizations claiming to represent employees directly affected
by the investigation. Pursuant to the notice, a hearing was held
from July 14 to 19, 1938, at Milwaukee, Wisconsin, before Wright
Clark, the Trial Examiner duly designated by the Board. The
Board, the Company, the Guild, the Office Workers, the Typographi-
cal Union, and the Teamsters were represented by counsel and
participated in the hearing. Full opportunity to be heard, to
-examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. Daring the course of the
hearing the Trial Examiner, upon motion by counsel for the Board,
permitted the introduction in evidence of a statement in the nature
,of an amendment to the original petition for the purpose of clarify-
ing the position of the Guild. All parties to the proceeding waived
objection to the admission of this document. On July 15, 1938, the
Company, the Office Workers, the Typographical Union, and the
Teamsters moved to dismiss the petition on the ground that the unit
-therein described was inconsistent with statements made by counsel
for the Guild during the course of the hearing. This motion was
renewed on July 18 and 19, 1938. The Trial Examiner reserved
decision on the motion. The Board has considered this motion and
it is hereby denied. During the course of the hearing the Trial
Examiner made several rulings on other motions and on objections
to the admission of evidence. The Board has reviewed the rulings
of the Trial Examiner and finds that no prejudicial errors were
committed. All the rulings are hereby affirmed.
On October 12, 1938, oral argument was had before the Board.
The Company, the Guild, and the Office Workers were represented by
counsel and participated in the argument. The Office Workers, upon
request made at the oral argument, was granted leave to file a brief
within 7 days, and the Guild, by request, was allowed 3 days in which
to file a reply brief. On October 18, 1938, the Office Workers' brief
was filed, which has been considered. The Guild has not filed a reply
brief.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Milwaukee Publishing Company, a Wisconsin corporation, having
its offices and printing plant in Milwaukee, Wisconsin, prints and
DECISIONS AND ORDERS 391
publishes the Milwaukee Sentinel, a morning newspaper; the Mil-
waukee News, an evening newspaper; and the Milwaukee News-Senti-
nel, a Sunday newspaper. All its stock, except directors' qualifying
shares, is owned by American Newspapers, Inc., a Delaware corpora-
tion, which is part of the Hearst organization of publications and
press, radio, and film services which we considered in Matter of Wil-
liam Randolph Hearst, Hearst Publications, Inc., Hearst Consoli-
dated Publications, Inc., Hearst Corporation, American Newspapers,
Inc., and King Features Syndicate, Inc. and American Newspaper
Guild, Seattle Chapter.,
About 85 per cent of the paper used by the Company in its publi-
cation is shipped to it in Milwaukee, Wisconsin, from Canada; only
about 15 per cent of the paper is acquired within the State of Wis-
consin. About 95 per cent of the ink used is shipped to the Company
from States other than Wisconsin. Approximately 18,000 tons of
such newsprint (ink and paper) were used by the Company in 1937.
The Company is a member of the Associated Press and subscribes to
and receives news, features, and photographic services from Interna-
tional News Service, International News Photo Service, Associated
Press Photos, and King Features Syndicate, which agencies collect
these materials from all parts of the country and the world. The
Company, for the purposes of this proceeding, concedes the juris-
diction of the Board.2
II. THE ORGANIZATIONS INVOLVED
Milwaukee Newspaper Guild is a labor organization affiliated with
the American Newspaper Guild, which in turn is affiliated with the
Committee for Industrial Organization. Formerly, the American
Newspaper Guild admitted to its membership only editorial employees
of news publications and press services. Since June 1937, when its
constitution was amended, it has admitted "any person gainfully em-
ployed 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" and certain classes of
government workers and employees of press and radio news services.
Membership qualifications are identical for the American Newspaper
Guild and Milwaukee Newspaper Guild except that the jurisdiction
of the latter is limited to "Milwaukee County and such neighboring
counties where no chartered Guild locals are functioning." Mil-
waukee Newspaper Guild is organized into employer units, one of
which admits only employees of the Company.
1 2 N. I. R. B 530
2 The facts found in this section are based upon it stipulation entered into by counsel
for the Board and counsel for the Company
392 NATIONAL LABOR RELATIONS BOARD
Office Workers' Union No. 16456 is a labor organization affiliated
with the American Federation of Labor, herein called the A. F. of L.,
admitting to its membership "any Stenographer, Bookkeeper, 't'ypist,
Biller, Stenotypist, Dictaphone Operator, Addressograph Operator,
Clerical Workers, and all other office workers" in Milwaukee, Wis-
consin, and vicinity.3
Milwaukee Typographical Union No. 23 is a labor organization
affiliated with the International Typographical Union, Which in turn
is affiliated with the American Federation of Labor. Milwaukee
Typographical Union No. 23 admits to its membership "any printer
(which term shall include all who are directly engaged in the printing
of books, jobs, newspapers, etc., whether as compositors or machine
tenders or proofreaders who are'practical printers), who has worked
at the business not less than 6 years." Qualified apprentices may be-
come apprentice members after having served the first year of their
apprenticeship.
Auto Truck Drivers' Union, Local 347, is a labor organization
affiliated with the International Brotherhood of Teamsters, Chauf-
feurs, Stablemen and Helpers of America, which in turn is affiliated
with the American Federation of Labor. Auto Truck Drivers' Union,
Local 347, admits to its membership truck drivers employed by Mil-
Waukee Publishing Company.
111. THE QUESTION CONCERNING REPRESENTATION
At a conference with William Thomson, business manager of the
Company, on or about May 11, 1938, the Guild sought to bargain
collectively for employees in the editorial, circulation, advertising,
and business departments. Thomson indicated that the Company
was willing to negotiate with regard to employees in the editorial
department, but in the absence of proof of agency, disputed the right
of the Guild to enter into a collective bargaining agreement covering
employees other than those in the editorial department.
We find that a question has arisen concerning representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate , and substantial
3 The reps esentative of the Office Workers ' Union testified that, in addition to the above-
mentioned categories of workers , advertising solicitors are eligible to Office Workers'
Union No. 16456
DECISIONS AND ORDERS 393
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 UNITS
In its petition filed May 19, 1938, the Guild claimed that "all em-
ployees in the Editorial, Accounting, Advertising, and Circulation
Departments, and- excluding Building, Maintenance, Mechanical,
Supervisory,, and outside circulation personnel , who already have
representatives for purpose of collective bargaining" constitute an
appropriate collective bargaining unit. In a supplemental or ex-
planatory petition introduced without objection during the course of
the hearing, the Guild clarified its claim with regard to the appro-
priate unit gs follows : "All employees of the editorial and com-
mercial departments (including advertising, business, accounting,
and circulation sub-departments) and such employees not now repre-
sented for collective bargaining, in miscellaneous departments, as are
not members of or eligible to membership in other unions having es-
tablished collective bargaining arrangements with the employer, and
excluding all members and apprentices of recognized craft unions
under contract, all outside circulation employees, including drivers,
district managers, station managers, road men and relay men, and
all executives."
The Company is willing to accept the unit defined by the Guild
provided that the Board finds it appropriate. However, the-Com-
pany desires to exclude from the bargaining unit the following cni-
ployees on the ground that they are closely identified with the
management and executive confidences are within their knowledge :
(1) secretaries to all executives; (2).the paymaster, Walter Koester,
who is in charge of pay-roll and personnel records; (3) Al Kasten,
a confidential clerk in the mechanical superintendent's office; (4) the
cashier, R. O. Collier; (5) Roman Kotowski, the general ledger book-
keeper, who prepares profit and loss statements, balance sheets, and
various reports to banks and tax departments. While the duties of
these employees may place certain -executive confidences in'their posses-
sion, other employees as to whom the Company raised no objection
also possess confidential information relative to the business and
policies of the Company. We are' of the opinion, therefore, that the
employees in question should not, as regards collective bargaining,
be distinguished from the other employees.
It appears from the record that the Company has collective bar-
gaining agreements with the following labor organizations : Milwau-
kee Mailers' Union, No. 23; Milwaukee Web Pressmen's Union, No.
23; Milwaukee Stereotypers' Union, No. tO; Milwaukee Photo En-
394 NATIONAL LABOR RELATIONS BOARD
gravers' Union, No. 19; Building Service Employees' Union, Local
No. 150; and Milwaukee Typographical Union No. 23.4 The agree-
ments cover many employees in the mail room, the pressroom, the
stereotype department, the photoengraving department, building serv-
ice and maintenance department, and the composing room. The em-
ployees in these so-called miscellaneous departments whom the Guild
would include in the unit on the ground that they are not covered by
the existing contracts of the craft organizations are the following:
Four copy-runners, one clerk, and three porters in the composing
room; two clerks in the engraving department; the mail-room porter;
and four porters in the pressroom. None of the craft organizations
having contracts with the Company claimed that any of the aforesaid
employees were covered by their contracts with the Company or that
the claim of the Guild impinged upon their jurisdiction.5 Further-
more, considerable evidence was introduced to prove that the said
employees were outside the scope' of the existing agreements.
The Office Workers claims that the employees in the business, ac-
counting, advertising, and inside-circulation subdepartments, consti-
tute an appropriate bargaining. unit. Such unit would include all the
employees in the unit which is contended for by the Guild except the
employees in the editorial department and the employees in the so-
called miscellaneous departments who are not covered by existing
contracts.
The operations of the Company correspond, in a general way, to
those of other newspaper publications which we have considered.,,
Suffice it to say that the record in this case shows that the various
departments, editorial, advertising, mechanical, circulation, and busi-
ness, are functionally interdependent and must be synchronized 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. It appears, therefore, that the employees in the depart-
ments covered by the claim of the Office Workers may appropriately
be included in one bargaining unit with the employees in the other
departments. This does not necessarily mean , however, that the estab-
4 The contract with the Typographical Union, by its terms , expires August 7, 1938.
However , there is evidence that the Union and the Company have reached an agreement
for a new contract . It appears that three electricians and one carpenter employed by the
Company are not covered by any written contract with a labor organization , but the
Company has bargained informally with these employees The Guild made no claim
that they be included in the unit . We shall , therefore, exclude them
6 Although a number of the craft organizations were not served with notice and did
not participate in the heating , counsel who appeared for the Typographical Union, the
Office Workers, and the Teamsters , stated at the beginning of the hearing that "if the
testimony does bring out that the Guild is interested in other employees . . . who are
within the jurisdiction of othei A. F of L. Unions, I will then ask to intervene on their
behalf " Although the claim of the Guild as to these employees was clear , there was no
request made for intervention on behalf of the other A F of L Unions
6 See Hatter of Daily Min or, Inc and The Newspaper Guild of New York, 5 N L R. B.
362 ; Matter of Boston Daily Record and Newspaper Guild of Boston, 8 N L R B 694.
DECISIONS AND ORDERS 39&
lishment of a separate unit composed of employees in the business,
accounting, advertising, and inside-circulation subdepartments would
be inappropriate. There is no history of bargaining for either type
of unit in the newspaper industry which can yet be said to indicate
the greater feasibility of one unit rather than the other.7 A number
of contracts between various locals of the American Newspaper Guild
and publishers which were submitted in evidence illustrates the varied
nature of the bargaining in the newspaper industry. Most of these
contracts were entered into in 1938, after the June 1937 convention-
had extended the jurisdiction of the American Newspaper Guild to,
include non-editorial employees. Some of these contracts cover edi-
torial and commercial employees, others include in addition some em-
ployees in the mechanical department, and still others are limited to,
employees in the commercial department.
We conclude under these circumstances that the desires of the em-
ployees in the business, accounting, advertising, and inside-circulation
subdepartments should be determinative as to whether such em-
ployees constitute a separate unit or are included in one unit with the
employees in the editorial, department, and the employees` in the so-
called miscellaneous departments who are not covered by existing
contracts.8 Neither the Guild nor the Office Workers submitted in
evidence membership or authorization cards to establish its majority
status among employees in the business , accounting , advertising, and
inside-circulation subdepartments. We find, therefore, that the de-
sires of such employees can best be determined by an election by secret
ballot.
We find that an election is also necessary to determine the desires
of the employees in the editorial department and of the employees in
the so-called miscellaneous departments who are not covered by exist-
ing contracts concerning representation. The Guild introduced no,
membership cards or other similar evidence of designation as repre-
Fentative by these employees.
In the one election, the employees in the business, accounting, ad-
vertising, and inside-circulation subdepartments, excluding execu-
tives, will vote to determine whether they desire to be represented by.
the Guild or by the Office Workers, or by neither. In the other elec-
tion the employees in the editorial department excluding executives,
,he copy-runners, clerk and porters in the composing room, the en-
graving-room clerks, the mail-room porter, and the pressroom por-
' See Matter of Boston Daily Record and Newspaper Guild of Boston, 8 N L. R B 694
'See Matter of The Globe Machine and Stamping Co . and Metal Polishers Union, Local'
No 3; International Association of Machinists, District No 5t; Federal Labor Union 18768.
and United Automobile Workers of America, 3 N L R B 294; Matter of Allis-Chalmers
Manufacturing Company and International Union, United Automobile Workers of Amer-
ica, Local 248, 4 N L R B . 159; Matter of Boston Daily Record and Newspaper Guild of
Boston, 8 N L R B 694.
:396 NATIONAL LABOR RELATIONS BOARD
ters, will vote to determine whether or not they desire to be repre-
sented by the Guild. In addition to executives, the following Will
not be entitled to participate in the elections : Outside-circulation em-
ployees, electricians and carpenters, and employees on behalf of
whom the following labor organizations have bargained and secured
contracts: Milwaukee Mailers' Union, No. 23; Milwaukee Web Press-
men's Union, No. 23; Milwaukee Stereotypers' Union, No. 90; Mil-
waukee Photo Engravers' Union, No. 19; Building Service Employ-
'ees' Union, Local No. 150; and Milwaukee Typographical Union,
No. 23. If both groups of employees participating in the elections
choose the Guild, they will together constitute a single bargaining
unit. If they do not, each group choosing to be represented by a
onion will constitute a separate bargaining unit.
VI. THE DETERMINATION OF REPRESENTATIVES
All parties agreed that the personnel, list prepared from the Com-
pany's pay roll for July 12, 1938, which was introduced in evidence
and used as the basis for testimony throughout the hearing, should
be used to determine eligibility to vote. It was further agreed that
employees who have since voluntarily resigned should be excluded,
but persons permanently employed since July 12, 1938, should be
included. In accordance With the agreement, eligibility to -vote in
the elections referred to in Section V above shall be determined on
the basis of the personnel list of, July 12, 1938, excluding those em-
ployees Who have since quit or been discharged for cause, but in-
cluding employees permanently employed since that time. _
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the represen-
tation of employees of Milwaukee Publishing Company, Milwaukee,
Wisconsin, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, 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 part of the investigation authorized by the
Board to ascertain representatives for the purpose of collective bar-
DECISIONS AND ORDERS 397
gaining with Milwaukee Publishing Company, Milwaukee, Wiscon-
sin, elections by secret ballot shall be conducted within fifteen (15)
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Twelfth Region, -acting in
this matter as,agent for the National Labor Relations Board, and
subject to Article III, Section 9, of said Rules and Regulations, among
the employees of Milwaukee Publishing Company who fall within
the groups described below who were on the pay roll July 12, 1938,
except those who have since resigned or been discharged for cause,
and in addition those who have since been permanently employed :
(a) Employees in the editorial department excluding executives,
the copy-runners, clerk and porters in the composing room, the en-
graving-room clerks, the mail-room porter, and the pressroom por-
ters, to determine whether or not they desire to be represented by
Milwaukee Newspaper Guild for the purpose of collective bargaining;,
(b) . Employees in the advertising, accounting, business, and in-
side-circulation subdepartments , excluding executives , to determine-
whether they, desire to be represented by Milwaukee Newspaper Guild
or Office Workers' Union No. 16456, for the purpose of collective bar-
gaining, or by neither.