New York Evening Journal, Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1938

10 N.L.R.B. 197 (N.L.R.B. 1938)

In the Matter of NEW YORK EVENING JOURNAL, INC. and NEWSPAPER:
GUILD OF NEW YORK
In the Matter of NEW YoRK EVENING JOURNAL, INC.' and AMERICAN-
ADVERTISING ASSOCIATES UNION, FEDERAL LOCAL 21627
Cases Nos. R-715 and R-866, respectively.Decided December, 5,1938
Newspaper Publishing Industry-Investigation of Representatives: contro--
versy concerning representation of employees: controversy concerning appropri-
ate unit ; employer's refusal to grant recognition of union for unit claimed--
Unit Appropriate for Collective Bargaining: dependent on desire of employees,
involved where considerations determinative of appropriate unit are such that
either of two contentions is valid ; determination of dependent upon results
of elections-Elections Ordered
Mr. Richard J. Hickey and Mr. Albert Ornstein, for the Board.
Mr. Edward J. Woods and Mr. E. D. Salinger, of Chicago, Ill.,,
for the Company.
Isserman, Isserman & Kapelsohn, by Mr. Abraham J. Isserman and
Mr. Joseph Goodwin, of.Newark, N. J., for the Guild.
Miss Geneva M. Marsh, of Ne* York City, for the A. A. A. U.
Mr. Alfred Peabody, of New York City, for the Machinists.
Mr. Harry Waltzer, Mr. Joseph Simons, and Mr. Anthony Fina-
more, of New York City, for the N. M. D. U.
Mr. Thomas King, Mr. Daniel Rock, and Miss Malia Bickel, of
New York City, for the Agate Rulers.
Mr. Henry F. Berg and- Mr. Hyman Palatnik, of New York City,
for the Building Service Union.
Mr. Rand Anderson, Mr. Charles A. Gallagher, and Mr. Frank,
O'Hara, of New York City, for the Mailers' Union.
Mr. Michael J. P. Hogan, of New York City, for the Stereotypers'
Union.
Mr. Joseph A. Carroll, of New York City, for the Electrotypers'
Union.
Mr. Ralph B. Wright, of New York City, and Mr. Clyde Mills, of
Long Island, N. Y., for the Typographical Union.
Mr. Edward White, Mr. Denis Burke, and Mr. Andrew Franssen,,
of New York City, for the Photo Engravers' Union.
Mr. Richard L. O'Hara, of New York City, for the I. B. E. W.
1 Incorrectly described in the original petition for investigation and ,tbe order directfng
an investigation . An amended petition was 'subsequently filed to substitute New York
Evening Journal , Inc., as the name of the employei
10 N. L. R. B. No. 14. 197
147841-39-vol. 10-14
198 NATIONAL LABOR RELATIONS BOARD
Mr. Joseph M. Finneran, of New York City, for the Pressmen.
Mr. Aaron A. Kaufman, of New York City, for the Newspaper
,Clerks' Union.
Mr. Richard Salant, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On February 5, 1938, Newspaper Guild of New York, herein called
the Guild, filed with the Regional Director for the Second Region
(New York City) a petition alleging that a question affecting com-
merce had arisen concerning the representation of employees of New
York Evening Journal, Inc., New York City, herein called the Com-
pany, and requesting an investigation and certification of represent-
atives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On March 18, 1938, the
National Labor Relations Board, herein called the Board, acting pur-
suant to Article III, Section 3, of National Labor Relations Board
Rules and Regulations-Series 1, as amended, ordered an investi-
gation and authorized the Regional Director to conduct it and to
provide for an appropriate hearing upon due notice.
On April 7, 1938, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon the Guild,
upon Agate Rulers Club of the Classified .Advertising Department of
the New York Journal, herein called the Agate Rulers, upon New
York Printing Pressmen's Union, herein called the Pressmen, upon
Newspaper and Mail Deliverers' Union of New York and vicinity,
herein called the N. M. D. U., upon Stereotypers' Union No. 1, herein
.called the Stereotypers, upon Electrotypers' Union No. 1, herein
called the Electrotypers, upon Photo Engravers' Union No. 1, herein
called the Photo Engravers, upon International Association of Ma-
chinists, District No. 15, herein called the 'Machinists, upon New
York Typographical Union No. 6, herein called the Typographical
Union, upon International Brotherhood of Electrical Workers Local
Union No. 3, herein called the I". B. E. W., upon Building Service
Employees Union, herein called the Building Service Union, and
upon Mailers' Union No. 6, herein called the Mailers, all labor organ-
izations or groups claiming to represent employees directly affected
,by the investigation. Attempted service upon the Commercial Artists
•& Designers Union, American Federation of Labor, Local 20329,
herein called the Artists, failed because the Artists had moved and
left no address. Pursuant to the notice, a hearing was held from
April 13 to April 26, 1938, at New York City, before Waldo C.
DECISIONS AND ORDERS 199
Holden, the Trial Examiner duly designated by the Board. The
Board, the Company, the Guild, the Agate Rulers, and the Building
Service Union were represented by counsel, and the other organiza-
tions listed above, except the Artists, were represented by officers or
,organizers of the respective unions, and participated in the hearing.
During the course of the hearing, however, it was disclosed that the
Agate Rulers was a social and benevolent society, and not a labor
,organization, and the Guild's motion to exclude the Agate Rulers
from further participation was granted. On May 17, 1938, pursuant
to notice served on all the parties, oral argument, in which represent-
atives of the Company, the Guild, the Machinists, the N. M. D. U.,
the Building Service Union, the Mailers' Union, the Typographical
Union, the Stereotypers' Union, the Electrotypers' Union, the Photo
Engravers' Union, and the Agate Rulers, participated, was held
before the Board.
On May 17, 1938, American Advertising Associates Union, Federal
Local 21627, herein called the A. A. A. U., filed with the Regional
Director for the Second Region (New York City) a petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of the advertising employees of the- Company, and request-
ing an investigation and certification of representatives. On May
19,1938, the Guild made a motion to intervene specially to dismiss the
petition. On June 6, 1938, the Board issued an order reopening the
record, directing an investigation and hearing on the claim of the
A. A. A. U. for representation of the advertising employees, as well
as on the claim of the Newspaper Clerks' Delivery Union, Inc., a
labor organization claiming to -represent return-room clerks in this
proceeding 2 on the question of representation among such clerks, and
consolidating the case with Case No. R-715.
On June 15, 1938, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon
the A. A. A. U., upon the Guild, upon International Brother-
hood of Teamsters, Chauffeurs, Stablemen & Helpers of Amer-
ica, and also upon the organizations originally served for the first
hearing. The Newspaper Clerks' Delivery Union, Inc., herein called
the Newspaper Clerks' Union, was not served with notice, but through
Aaron Kaufman, its president, appeared and waived notice of hearing
Pursuant to the notice, a hearing was held on June 22, 23, 24, and
July 1, 1938, at New York City, before George Bokat, the Trial Ex-
aminer duly designated by the Board. The Board, the Company, and
the Guild were represented by counsel; the A. A. A. U. was represented
by Miss Geneva Marsh, an organizer for the American Federation of
Labor; the Newspaper Clerks' Union was represented by Mr. Kauf-
2 The Board's order specifically limited the participation of the Newspaper Clerks' Union
to the question of representation among the return -room clerks.
200 NATIONAL LABOR RELATIONS BOARD
man; the Photo Engravers, the Mailers, the Typographical Union,
the N. M. D. U., and the Pressmen were represented by their respec-
tive officers. All these parties participated in the hearing. On
August 25, 1938, oral argument, in which representatives of all the
parties, except the Newspaper Clerks' Union as well as the Publishers
Association of New York City, participated, was held before the
Board. At the same time the American Federation of Labor sub-
mitted a brief.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded all
parties at both hearings before Trial Examiners. During the course
of the hearings the Trial Examiners made several rulings on motions
and on objections to the admission of evidence. The Board has re-
viewed the rulings of the Trial Examiners and finds that no prejudi-
cial errors were committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makesthe following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
New York Evening Journal, Inc.,, a New York corporation having
its office in, New York City, is the publisher 'of a daily and Sunday
newspaper. All its stock is owned by the Hearst Consolidated Publi-
cations, Inc., a corporation which itself or through 'corporate subsidi-
aries publishes other newspapers throughout the country.
All the newsprint, amounting in value to approximately $60,000,
weekly, and ink used by the Company in its publication are shipped
to it in New York City from without the State of New York. About
14 per cent of the circulation of its daily newspaper and 42 per cent
of its Sunday paper is circulated and distributed outside of the State
of New York. The Company uses news, features, and photographic
services which collect their material in all parts of the country and
transmit their products to the Company in New York City. Although
the Company has purchased very little machinery and equipment
from outside New York in the last 5 years, 85 per cent of all other
supplies used by it are purchased outside that State. The gross
revenue of the Company totals approximately $250,000 weekly. The
Company concedes the jurisdiction of the Board.
For administrative purposes the Company, ha's assigned its em-
ployees to five departments, viz.: editorial, advertising, circulation,
production, and business.
IT. THE ORGANIZATIONS INVOLVED
Newspaper Guild of New York is a labor organization affiliated
with the American Newspaper Guild, admitting to its membership
DECISIONS AND ORDERS 201
``any person gainfully employed in and devoting the major part of
his time to an editorial, business, circulation, promotion, or adver-
tising department or allied groups of employees of a news publica-
tion," in greater New York and vicinity. The American Newspaper
Guild is affiliated with the Committee for Industrial Organization.
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. Provision is made to include "all
workers provided for in the Union's wage scale agreements and only
members working in any of the following positions shall be con-
sidered as-`engaged in the craft' . . . inspectors, routemen, recovery-
men, 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 all employees doing work
"appertaining to mailing, such as addressing, tagging, bagging,
stamping, labeling, bundling or wrapping, preparing lists or wrap-
pers, operating stencil machines, sorting, routing, . .. counting of
papers (leaving or returning.) " etc.
New York Photo Engravers' Union No. 1 is a labor organization
affiliated with International Photo Engravers' Union of North Amer-
ica and with the American Federation of Labor. It admits to mem-
bership "all workers engaged in" and "includes all methods and
processes and parts thereof, of reproducing likenesses of whatever
character or description reproduced by means of photography or
otherwise and used for printing purposes."
New York Typographical Union No. 6 is a labor organization
affiliated with International Typographical Union, whose jurisdic-
tion includes "all branches of • the- printing and kindred trades other
than those over. which jurisdiction has been conceded by agreement"'
Local No. 6 admits "any printer who has attained the age of 21 years
and has worked not less than 5 years as an apprentice in the composing
room."
American Advertising Associates Union, Federal Local 21627, is
a labor organization affiliated with the American Federation of
Labor, admitting to membership "all those actively engaged in the
profession of advertising or those closely allied." 8 -
s The A. A. A. U. was granted a charter by the American Federation of Labor on May 10,
1938. Its constitution and bylaws had not, at the time of- the hearing, been completed,
and its. statement of, eligibility -was still -tentative. Whether- or not- the-A. A. A U. is to
limit members to employees of the Company appears as yet undecided ; it was stated that,
if successful in organizing the Company's employees, the A. A. A. U. would expand and
organize other advertisers in New York City.
202 NATIONAL LABOR RELATIONS BOARD
Newspaper Clerks' Delivery Union, Inc., is an independent labor
organization incorporated in the State of New York on April 14,
1938. It admits to membership "all workers engaged in handling,
distributing, and delivering newspapers" in the metropolitan area
of greater New York and vicinity. Its constitution provides that
it shall "include all workers provided for in any of the Union's
wage scale agreements and only members working in any of the
following positions shall be considered as `engaged in the craft'
clerks working for inspectors, routemen, recoverymen, mail delivery
men ... all clerks working on the back end of all delivery trucks
together with all clerks working in the return room, also known
as Return Room Clerks ..."
In addition to the unions listed above, the following labor organiza-
tions, whose interests are not disputed, are involved : Paper Handlers"
and Straighteners' Union No. 1; New York Stereotypers' Union
No. 1; New York Newspaper Printing Pressmen's Union No. 2;
Local Union No. 3, International Brotherhood of Electrical Work-
ers; Building Service Employees Union Local 32b; New York Elec-
trotypers' Union No. 100; International Association of Machinists;
and Commercial Telegraphers' Union. There was evidence to show,
moreover, that the Commercial Artists and Designers Union, Local
20329, has ceased its existence and its members have affiliated with
the Guild.
III. THE QUESTION CONCERNING REPRESENTATION
Prior to June 1937, the" jurisdiction of the Guild was limited by
its constitution to editorial employees only. ^ Upon this basis, the
Guild had negotiated with the New York Evening Journal and the
New York American, the predecessors of the Company, which recog-
nized the Guild by issuing a statement of policy to remain in effect
for 1 year beginning January 1937. ' At a convention in June 1937,
the American Newspaper Guild voted to extend its jurisdiction to
include employees of so-called commercial departments and to other
"allied`groups who do not "fall' within -the jurisdiction of 'established
craft jurisdictions." On January 24, 1938, the Guild communicated
with the Company, announcing its purpose to negotiate for an agree-
ment covering commercial as well as editorial employees. After sev-
eral conferences the Company wrote to the Guild on February 2,
1938, that it was willing immediately to enter negotiations looking
toward a contract covering editorial employees, but suggested that
the "Guild move to establish, in the manner prescribed by law, its
authorization to represent in collective bargaining, certain employees
of the Journal-American other than in the Editorial Department"
We find that a question has arisen concerning representation of
employees of the Company.
DECISIONS AND ORDERS 203-
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 commercial divisions, including business, circulation, advertis-
ing, and allied groups, excluding only executives and employees who.
are members of recognized mechanical craft unions" constitute an,
appropriate bargaining unit. During the hearing, the Guild fur-
ther clarified its contention by claiming that the appropriate unit
includes -all employees of the Company except executives, certain
part-time employees, temporary employees, and those employees 4
who are members of or eligible for membership in established craft
unions and who are covered by existing collective bargaining agree--
Iiients, with the Company or with the Publishers' Association of New
York, of which the Company is a member.
The evidence shows that the Company is operating under closed-
shop agreements with - the following labor organizations : Paper
Handlers' and Straighteners' Union, New York Stereotypers' Union,
New York Printing Pressmen's Union, International Brotherhood of
Electrical Workers, Mailers' Union, and Newspaper and Mail De-
liverers' Union of New York, for certain employees in the circula-
tion department, Photo Engravers' Union, Typographical Union No.
6, and Commercial Artists and Designers Union for the advertising,
art department employees. By virtue, however, of a purported as--
signment of its contract to the Guild on April 23, 1938, the Guild
claims members covered by the Artists' contract in the unit it alleges
to be appropriate. Except for the members of the Artists' Union
and for certain categories of employees discussed below, the Guild,
would exclude all employees who are members of those unions named
which have previously concluded contracts.
By stipulation, the Guild also conceded that four plateboys in
the stereotyping department properly belong in the group covered
by the Stereotypers' contract, since the Stereotypers' has long nego-
tiated-for them and since the boys have an opportunity to be ab-
4 It was agreed that Bridget Fox, appearing on the business -department pay roll, is not
an employee of the Company but the recipient of a pension , and should therefore be
excluded.
204 NATIONAL LABOR RELATIONS BOARD
.sorbed as apprentices. Further; the Guild stipulated with the Build-
ing Service Union that, since all those employed in the maintenance
of the Company's building are eligible thereto, since the Building
Service Union is a recognized craft union with a long bargaining
history, and since it is now organizing those employees, the Guild
would exclude the building maintenance employees from its claim.
It was agreed between the Guild and the Building Service Union
that one porter and three handy men are not employed in the main-
tenance of the building and should therefore, be included within the
unit claimed by the Guild.6 The Guild also stipulated that it waived
claim to all the employees on the general mechanical pay roll of the
Company including machinists and machinists' helpers in the ma-
chine shop, except two clerks and four handy men not claimed by the
Machinists' Unions The Guild would, further exclude those em-
ployees covered by a contract between the Company and the Electro-
typers' Union, and also would exclude those working on Hearst In-
ternational Advertising Service, known as "Rodney-Boone" em-
ployees, since they are not employees of the Company.
The Company's position is that employees of each department con-
stitute an appropriate bargaining unit. The American Federation of
Labor in its brief, contended that the employees engaged in editorial,
in advertising, in circulation, and in general business and office work
,each constitute ti separate appropriate unit. It requested, however,
that if the Board rejected this contention the Board, then designate
as the appropriate unit "only those employees in the editorial, ad-
vertising, circulation and business departments, excluding all mechan-
ical or maintenance workers." It will be seen, thus, that the Ameri-
can Federation of Labor's alternative proposal differs from the
Guild's contention only in that the former would exclude the unor-
ganized mechanical and maintenance employees. The American
Federation of Labor proposes that if this unit be designated as the
appropriate one, then the employees may be represented by the
American Federation of Labor Organization Council, "a joint
council organization comprising a joint council of all craft unions
affiliated with the A. F. of L." In a letter to the Board, counsel for
the Guild, without agreeing to the exclusion of unorganized mechani-
cal and maintenance workers, consented that this Council be placed
on the ballot in opposition to the Guild. The A. A. A. U. further
,contends that the employees in the advertising department, exclud-
ing employees in the merchandising and national advertising depart-
"It was agreed that the purchasing agent was engaged in building maintenance, was
eligible for the Building Service Union , and should , therefore , be excluded from the unit
claimed by the Guild
O The parties agreed that Le Roy deFreitas; a "blanket manufacturer,"=who prepared
"blankets" for the pressroom is eligible for the Machinists ' Union and should, therefore,
he excluded from the unit claimed by the Guild.
DECISIONS AND ORDERS 205,
ments but including employees in the classified and local advertising
departments , constitute an appropriate ' bargaining unit.?
- The functions of the five departments of the Company ( editorial,
production , circulation , business , and advertising ) are closely similar
to those described in the Matter of Daily Mirror, Inc. and Ne tvspaper
Guild of New York 8 and need not here be recited . The various
departments are but integrated parts of a single interdependent whole,
each dependent for its proper functioning on the uninterrupted and
undelayed continuance of the other . We, have said in the Mirror
case that
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 so that all operations synchronize in order that each
edition ' may coritaix the 1 'atest news possible. Each department
is administratively separate but economically dependent on the
other's. A shut-down in any department , resulting from a labor
dispute, would iii all likelihood cause a suspension of publica-
tion amid would at least cripple the operations of the other
depar'tnierits and eventually r'elider the whole enterprise un-
piofit'able.
Although each department is administratively independent, some-
extent of overlapping work was undisputed . Thus it appeared that
news photographers on the editorial staff are used for and by the
advertising department, that employees in the advertising department
sometimes write news columns closely connected with advertising,
that editorial reporters are drafted to work on promotional' work
for the circulation department , that position and often amount of
news material, depends on the position and arrangement of advertis-
ing and that employees in the editorial department are frequently
present. in the mechanical department at edition time. The depart-
ments , then, are not only functionally interdependent but there is-
also, in some degree, a circulation of actual work , among the various-
departments.
The evidence showed, moreover , that the Guild has concluded with-
13 other papers contracts which include the commercial departments.
Advertising Department Employees
There is further controversy concerning the inclusion in the general
bargaining unit of employees of several divisions of the advertising
department. There is in evidence a contract between the Company
7 The contention of the A A. A. U. Is treated specifically below.
e 5 N. L. R. B. 362 . See also Matter of Ttimes Publishing Company and The Newspaper
Guild of Detroit, 8 N. L R. B 1170.
206 NATIONAL LABOR RELATIONS BOARD
and the Artists' Union covering the commercial artists. This con-
tract is still in effect, but there is evidence that the contract was as-
signed to the Guild on April 23, 1938. Efforts were made to serve the
Artists' Union with notice of the hearing, but it had moved, leaving
,no address, and the testimony showed that it had apparently been
,absorbed by and become a part of the Guild. No representative of the
Artists' Union and no member of the commercial artists appeared to
,dispute the inclusion of this group in the general Guild unit. We
shall, therefore, include these artists in the general unit claimed by
,the Guild.'
Following the exclusion from the original hearing of the Agate
Rulers' Club, claiming to represent the classified-advertising depart-
ment of the Company, members of that department formed the
A. A A. U. and claimed at the reopening of the hearing that the
classified and local advertising divisions, or those "employees em-
ployed in the Revenue Producing Sub-Departments of the Advertising
Department" should constitute a separate unit. This unit, as claimed,
would include 239 of the total 334 employees in the entire advertising
department. At the time of the hearing, however, the A. A. A. U.
claimed membership, except, for one employee in the local display di-
vision, only in the classified-advertising division, to which it had thus
far limited its activities. The functional relationship between the ad-
'vertising and the other departments has already been- observed, as well
as the overlapping *of the actual work, the appearance of advertising
matter as news, the use of editorial employees for advertising projects,
the dependence of the physical lay-out of the news departments on the
-arrangement and amount of advertising.
The A. A. A. U. claims, however, that the work of the employees in
the advertising department is highly specialized. ; The functions of
,the advertising employees fall into two categories : soliciting adver-
tising and arranging the lay-out of the advertising copy. Both these
-functions, according to the A. A. A. U., require special skill and
knowledge. But the A. A. A. U. does not claim the entire advertising
'department; it would exclude 95 employees on the advertising pay roll.
It would include stenographers, clerks, and messenger boys who are
in the classified-advertising division, and exclude those in the local
display. It justifies this action on the ground that the stenographers,
clerks, and messenger boys in the classified-advertising department
occasionally "take" advertising over the 'telephone, and that there
exists in this division a training and promotional system whereby
these employees move either up into advertising proper or out of the
Company altogether. These conditions do not obtain in the local dis-
play division, where greater skill and knowledge of lay-outs is re-
IIt was agreed , however, that 'R.-Laussucq should not be included in the general unit
since he is not an employee of the Company but a "Rodney -Boone" employee.
DECISIONS AND ORDERS 207
quired, so that the employees in that division cannot be entrusted with
"taking" advertising. -
These contentions are not convincing. The promotional system
does not appear to be one which would separate the stenographers,
clerks, and messenger boys in the classified-advertising division from
similar employees throughout the plant. The promotional plan
would seem to be no more than the ordinary policy of advancement
obtaining in any progressive business.
Thus, even assuming that the, entire advertising department could
constitute a separate appropriate unit, the- symmetry is marred by
substantial and irrational exclusions which deprive the group of
homogeneity and fail to justify their segregation into a separate unit
appropriate for the purposes of collective bargaining.
Failing this, the A.. A. A. U. takes the position that this is a situ-
ation where the appropriate unit should be determined by the desires
of, the.employees.. It argues that the reasoning of the Boston Daily
Record 10 case; in which the employees of the editorial department
were held'to be entitled to express their, wishesconcerning their inclu-
sion in a separate or an employer unit, -is -apposite. An important
element, present in the Record case,,is lacking here. In that case, it
was established that the editorial department had long been treated,
for collective bargaining purposes, as a separate unit and that such
situation had obtained in other plants throughout the industry. The
advertising department of the Company-here can claim no such bar-
gaining history. Furthermore, at the oral argument, counsel for the
Company stated that he knew of no division of the advertising de-
partment elsewhere. 'The evidence showed, moreover, that several
contracts had recently been concluded between the Guild and other
newspapers in which the advertising department was included in the
general unit. In the brief submitted by the A. A. A. -U. it is argued
that the bargaining history is furnished- by the record of the Agate
Rulers' Club, which has been in existence since 1931. But the brief
states that the Agate Rulers' Club was "more in the nature of a social
club than anything else" ; there is no evidence that it had ever engaged
in collective bargaining, and the Agate Rulers' Club was excluded
from the first hearing on the ground that- it was not a labor' organi-
zation at all. -Nor would this "history" be helpful'to the A. A. A. U.'s
claim to the entire advertising department, since the evidence shows
that the Agate Rulers' Club's membership has always been carefully
limited to employees in the classified-advertising division only.
. To gain the maximum benefit from collective bargaining, the ad-
vertising department should be treated as a group within the larger
unit. We shall, therefore, include the commercial artists and the
"Matter of Boston Daily Record and Newspaper Guild of Boston, 9 N. L R. B. 25.
208 NATIONAL LABOR RELATIONS BOARD
classified and local advertising divisions" within the general unit
hereinafter found to be appropriate.12
Thus, in general, the employer unit, limited to the extent covered
by recognized mechanical craft unions, is appropriate in this case.
The Guild's claim of what constitutes the appropriate unit, with the
group and individual exclusions discussed above, is a reasonable one.
Although its claim may lack symmetry, it has the virtue of being
so designed that it will give to all employees an opportunity to be
represented. It is for this reason that the limitations of the Ameri-
can Federation of Labor's alternative proposal must be rejected; no
sound reason appears why the mechanical and maintenance workers
who have not heretofore been bargained for by other unions shoul&
be left without representation or the prospect of representation.
Generally, then, the appropriate unit would include the editorial
department and those other departments and classes of employees
who have not -heretofore enjoyed the fruits of collective bargaining.
But since the Guild confines its claims to those employees ineligible-
to membership in existing craft unions, and on whose behalf there
have been no negotiations or agreements, several categories of em-
ployees are further disputed and the claims must be examined.
Stencil-.and.=.Blotter; Clerks,
In the circulation department are approximately six stencil and
blotter clerks. The stencil clerks punch out the names and ad-
dresses of consignees of the bundles on strips from addressograph
machines. These strips are then turned over to the mailers whoa
place the addresses. on the bundles to be shipped. The blotter clerks
arrange the orders for delivery to distributors outside the city, keep-
ing such orders in book form as records of the number of papers so.
shipped. These 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
generally cover all mailing functions and specifically cover stencil
and blotter clerks if over 21 years of age. The Mailers' Union con-
tract with the Company, however, does not include these clerks, and
the evidence shows that this union has never been successful in its
attempts to negotiate on their behalf. It is further significant that
n At the first hearing there was conflicting evidence concerning the status of D. J. Rock.
At the rehearing it was shown that although he is an independent lawyer, Mr . Rock is
regularly employed as an advertising salesman of the Company . We shall , therefore, in-
clude him in the general unit.
12 Matter of Seattle Post-In:telligenoer , Department of Hearst Publications Inc. and
Seattle Newspaper Guild, Local SP, 9 N. L. R B. 1262.
DECISIONS AND ORDERS 209
the Mailers' Union has no members among the stencil and blotter
clerks. On the other hand there is evidence that three of these em-
ployees are ' members of the Guild. Under the circumstances we
shall include the stencil and blotter clerks within the general ap-
propriate unit.13
City Inspectors
Forming a part of the circulation department are 21 city in-
spectors whose duties include the maintenance of contacts with and
supervision over newsstands, the reporting of circulation in the va-
rious localities, and the checking of 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. claims that 17 of the
inspectors employed by the Company are members of such Union,
but there is some evidence that the inspectors have retained their
membership for the sole purpose of engaging in other work where
a card in the N. M. D. U. is requisite. The N. M. D. U. has at-
'tempted for some time to bargain on behalf of the inspectors, but no
express terms and conditions covering this group have yet been ob-
tained. The N. M. D. U. contract'now in force with the Company
does no more than limit by indirection the work which an inspector
may do.
In this group, then, the considerations which determine the ques-
tion of the proper unit in which the inspectors belong are so evenly
balanced that the decisive factor should be the desire of the men
themselves. We shall, therefore, direct that an election be held
among the inspectors employed by the Company to determine
whether they wish to be represented by the Guild, by the American
Federation of Labor, by the N. M. D. U., or by none of these unions.
As indicated below, we shall also direct that an election be held
among the groups we have found to be within the appropriate gen-
eral unit to determine whether they wish to be represented by the
Guild, by the American Federation of Labor, or by neither. On
the result of the election among the city inspectors will depend in
part the appropriate unit for collective bargaining with the Com-
pany.14 If a majority of the city inspectors cast their votes for the
Guild and/or the American Federation of Labor, the city inspectors
shall be included within the general unit and their votes shall then
be counted for the determination of the representative as between the
Guild and the American Federation of Labor, along with the other
votes cast by the employees who are already-found to be included in
'3 Cf. Matter of Allis-Chalmers Manufacturing Company and International Union, United
Automobile Workers of America, Local 248, 4 N. L . R B. 159.
24 See Matter of Pacific Gas and Electric Company and United Electrical & Radio Work-
ers of America, 3 N. L. R. B. 835.
210 NATIONAL LABOR RELATIONS BOARD
the general unit. In the event, however, that a majority of the city
inspectors cast their votes for the N. M. D. U. or for neither the
Guild, the American Federation of Labor, nor the N. M. D. U., the
city inspectors shall be excluded from the general unit.
Return Room Clerks
In the business department are nine 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.
These clerks are claimed by the Mailers' Union, by the Newspaper
Clerks' Union, and by the N. M. D. U.
(a) The contention of the Mailers' Union
The eligibility provisions of the Mailers' Union specifically in-
clude these return-room clerks. The contract negotiated by the
Mailers' Union does not, however, provide for this group. Although.
the Mailers' Union claimed at the time of the hearing to be nego-
tiating to include these clerks, and were soliciting membership
among them, it introduced no convincing evidence to substantiate its
claim and admitted that it had no members among the clerks of the
Company for over 5 years.
We, therefore, find that the Mailers' Union has made no genuine
effort to organize or bargain for this group of employees.
(b) The contention of the N. M. D. U.
Although one clerk employed by the Company is a member, there
is no specific provision for return-room clerks' eligibility in the
N. M. D. U. constitution. They are expressly excluded from the
contract with the Company by Section 14, which states : "The Union
recognizes as unquestionable the jurisdiction and control of the
management of the members of the Publishers Association in the
Return Departments." During the oral argument, the representa-
tive of the N. M. D. U. admitted that "we never tried to get the collec-
tive bargaining rights" in behalf of these clerks. We, therefore,
find that the N. M. D. U. has made no genuine effort to bargain for
these employees.
(c) The contention of the Newspaper Clerks' Union
At the second hearing, the Newspaper Clerks' Union claimed to
represent the return-room clerks. Although its constitution specifi-
cally provides for their eligibility, Aaron Kaufman, the president of
the Newspaper Clerks' Union, testified that it had concluded no con-
DECISIONS AND ORDERS 211_
tracts covering such clerks. In his first appearance, Kaufman fur--
ther testified that his organizers were then soliciting membership,
among the return-room clerks of the Company. Although incor-
porated in April 1938, the evidence showed that this union had been
in existence some 13 months prior to the hearing. Nevertheless, the-
Newspaper Clerks' Union, although given ample opportunity, and_
although the record was expressly left open for such proof, failed to^
show that it had obtained any members among the return-room
clerks of the Company. We find, therefore, that neither the history-
of this Union nor the evidence submitted by it are sufficient to sup-
port its claims.
In view of the fact that these clerks are either not eligible to, have-
not been negotiated for by, or have expressed no desire to be repre-
sented by, these unions, we shall include the return-room clerks-
within the general bargaining unit hereinafter found to be appro-
priate.
Scale Boys
Employed in the publication department are scale boys, some of
whom scale for the advertising department while others scale for-
the photoengraving department. Their general work is to enlarge-
or reduce the size of art work or photographs to fit the space specified.
This is achieved by mathematical computation through the use of
slide rules. There is evidence that the two groups of scalers do-
slightly different work, those for the photoengraving department
scaling to specified lines and for the special purpose of reproduction:
by camera, while those who prepare work for the advertising depart-
ment scale by inches and their work is not necessarily for camera,
reproduction. In addition, the scalers for the photoengraving de-
partment may check on blue-prints. The Photo Engravers' Union-
claims only the seven scalers in the photoengraving department.
Scale boys are eligible for this union if they have reached the age of
21 years and have worked for 6 years in the photoengraving de-
partment. At the time of the hearing the Photo Engravers' Union-,
had no members among the group claimed. This union claims, how-
ever, that since 1936, it has attempted to negotiate for the scalers in
the photoengraving department. These scalers are not, however,-
covered by the contract effected by this union, since the contract pro-
vides only for journeymen and apprentices.
Since the scalers in the photoengraving department are not pro-
vided for in the existing contract, and since, despite minor differ--
ences in the work done by the advertising group and by the photo-
engraving group, the work done by all the scalers is substantially the
same both in,method and in purpose, we feel that their interests are-
so closely related that if the maximum benefits from collective bar--
212 NATIONAL LABOR RELATIONS BOARD
gaining are to be received by the scalers, they should all be, included
together. We shall, therefore, include all the scalers within the gen-
eral bargaining unit hereinafter found to be appropriate.
Maskers
Included in the art department of the advertising department are
six maskers who are engaged in the process of painting out portions
of photographs and art work in order to increase the effect of other
portions, a' process achieved by the dropping out of certain tones so
as to increase the contrasts. Until recent mechanical changes were
introduced masking was done by "strippers" in the photoengraving
division. It is on this basis that the Photo Engravers' Union claims
jurisdiction over this group. It appears,- however, that certain em-
ployees in the art department of the advertising department, who
were engaged in masking, applied for membership in the Photo
Engravers' Union as artists, but they "received no encouragement
to enter" and were not considered seriously. Although this union
,claims to have attempted to negotiate on behalf of the maskers since
1936, the gist of their claim is not to represent the maskers but to
recapture control of the .process of masking, lost with the introduc-
tion of the new machinery. The Photo. Engravers' Union desires
only that if any masking is to be done it be done in the photoengrav-
ing department and by members of that union. It appears that those
,engaged in masking also have duties in the line of commercial artists,
and it is only the process of masking and not these men which the
union claims. We shall, therefore, include those engaged in masking
in the general bargaining unit hereinafter found to be appropriate.
Composing Room Boys
In the production department are about 40 composing-room "boys"
who move galleys of type about, pull proof from the news and ad-
vertising presses, do errands and clerical work generally in the com-
posing room, and act as helpers to the journeymen. Functionally,
these boys are closely allied to the compositors. This group is claimed
by the Typographical Union, which bases its demand on the fact that
the boys work the same number of hours as members and generally
.enjoy the same privileges concerning overtime pay and the use of
substitutes. Under the existing contract, moreover, apprentices are
chosen from the composing-room boys, but they are not otherwise
mentioned in the agreement, except to limit the types of work they
may perform. There is considerable question whether these boys
in their present status are eligible to join the Typographical Union
at all, since the union "recognizes only two classes of labor . . .
journeymen and apprentices," since the term of apprenticeship is at
DECISIONS AND ORDERS 213,
present apparently 4 years, and since there may be only six appren-
tices at any given time. Further, many of these "boys" are well past
the maximum age limit of 21 fixed by the Typographical Union or-
ganization rules for beginning apprentices. Although there is evi-
dence that -this age limit has been waived by a general "amnesty"
in 1936, in the last 9 years only six or seven boys have become ap-
prentices and so eligible for the union, and even subsequent to the
"amnesty" no composing-room boy has been taken into the Typo-
graphical Union. It appeared, thus, at the time of the hearing, that
even if the composing-room boys were eligible to that union, they
could find there neither a welcome nor easily accessible haven.
At the oral argument on August 25, 1938, however, the representa-
tive of the Typographical Union stated that the Executive Committee
of the Union was then "working upon- the establishment of an auxil-
iary to the Union which would give composing room boys limited
membership as sub-apprentices." It was further stated that the Typo-
graphical Union was then negotiating a new contract with the Pub-
lishers' Association of New York City, and that this contract con-
tained proposals which "included definite and unmistakable provisions
covering wages, hours and working conditions for all composing room
boys."
We have previously stated that "If the typographical craft organiza-
tions desired to bargain for them [the composing-room boys] we
should be disposed to exclude them from a unit composed largely of
white collar workers, but„ we are impelled by the consideration that
no one will bargain for. these workers if [the Guild] does not.""' -It
appears now that the Typographical Union-does desire to bargain
for the composing-room boys and that it has taken concrete steps
toward creating machinery for their representation.
In view of pending developments, we shall suspend our final con-
clusions on the claims made by the Guild and the Typographical
Union concerning the composing-room boys. For the present, we shall
exclude these boys from the unit claimed by the Guild. If, however,
at the end of 90 days from the date of this Decision, no satisfactory
machinery has been set up to provide the composing-room boys'with
bona fide representation, we shall then entertain -a motion to include
'them in the general unit hereinafter found to be appropriate.
Other Employees
All parties agree that the advertising merchandise research division
employees (that is, employees of the International Advertising Serv-
ice, or "Rodney-Boone" employees) should be excluded from the bar-
' Matter of Daily Mirror, Inc. and The Newspaper Guild o f New York, 5 N. L R B.
362; Matter of Times Publishing Company and The Newspaper Guild of Det,oit, 8
N. L. R B 1170.
147841-39-vol. 10-15
214 NATIONAL LABOR RELATIONS BOARD
gaining unit since they are not employees of the Company. The parties
also agree that those employed only temporarily," as well as jumpers,
who assist the routemen, and contract helpers, who act as newsboys,
and other part-time employees who are for the most part schoolboys,
shall not be included. It is further agreed that only the plants at
220-24 South Street and the Mott Street plant are involved, and that
the employees of the American Weekly at the 45th Street plant shall
not be included. We shall, accordingly, exclude these groups.
Excluded also from the bargaining unit are executives, including
the chief, the managing, the Sunday, the sports, and the financial
editors, as well as the telegraph manager, who is a member of the
Commercial Telegraphers' Union. The Guild, however, would in-
clude the head of the art department, and the head of the pho-
tography department. Although witnesses for the Guild testified
that these two men were "not considered executives" there was no
showing that their powers differ substantially from the managing
editor and other heads of the editorial department. The heads of
these two departments will, therefore, be excluded from the general
unit.17
The record shows that Lewis Haney, of the financial department,
is'not an independent syndicate writer as indicated by the company's
pay roll but is regularly employed by the Company. He is•therefore
included. P. F. Holscher, although listed as a telegraph operator,
is engaged in tearing off copy from the teletype machine and meas-
uring the headlines for late news flashes. He does not know-how to
use a telegraph key, and is not eligible for membership in the Com-
mercial Telegraphers' Union. He is, therefore, included in the gen-
eral unit.
We conclude that all employees of the Company, excluding execu-
tives, persons who are covered by the contracts of Stereotypers'
Union ; Electrotypers' Union ; Paper Handlers' and Straighteners'
Union ; New York Newspaper Printing Pressmen's Union ; Local No.
3, International Brotherhood of Electrical Workers; Newspaper and
Mail Deliverers' Union ; Mailers' Union ; Photo Engravers' Union ;
and Typographical Union, persons who are members of or are
eligible to membership in Building Service Employees Local No. 32b;
or in International Association of Machinists, persons employed in
advertising merchandise research or International Advertising Serv-
ice, employees at the American Weekly plant, temporary employees,
and jumpers, contract helpers, and similar part-time employees,
should be included in the unit hereafter found to be appropriate for
" All those appearing on the Company's pay roll, Respondent Exhibit 4, under "Spoons"
are employed only for the duration of a promotional scheme Only M. McLaughlin is a
permanent employee and should therefore be included
17 See Matter of Seattle Post-Intellsgencer , Department - of Hearst Publications Inc. and
Seattle Newspaper Guild, Local 82, 9 N L R B 1262.
DECISIONS AND ORDERS 215
the purposes of collective bargaining . Whether or not the city in-
spectors shall be included in the general appropriate unit shall de-
pend on the results of the election which we shall order . For the
present , we make no finding concerning the composing -room boys.
VI. THE DETERMINATION OF REPRESENTATIVES
At the hearing, the Guild claimed to represent a majority of the
employees in the appropriate unit for which it contended , but offered
no proof and made no request for certification.
We find that the question which has arisen concerning the repre-
sentation of employees can best be resolved by holding an election by
secret ballot to determine whether or not the employees desire the
Guild or the American Federation of Labor to represent them. As
we have indicated above, the election among the city inspectors will
determine not only whether they are to be included within the ap-
propriate unit but whether they wish to be represented by the Guild
or the American Federation of Labor.
The Company introduced into evidence the pay roll for the week
including April 1, 1938. No objection was made to this pay roll
and it was used as the basis for the testimony throughout both hear-
ings. Eligibility to vote will, therefore, be determined by employ-
ment as indicated by the pay roll of April 1, 1938.
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 repre-
sentation of employees of New York Evening Journal , Inc., New
York City, 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 Rela-
tions 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 part of the investigation authorized by the
Board to ascertain representatives for collective bargaining with
New York Evening Journal, Inc., New York City, elections by secret
ballot shall be conducted within fifteen (15) days from the date of
this Decision , under the direction and supervision of the Regional
Director for the Second Region, acting in this matter as agent for the
216 NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board, and subject to Article III, Section 9,
of said Rules and Regulations, among those employees of New York
Evening Journal, Inc., who fall within the groups described below
who were on the pay roll of the Company for the week which in-
cluded April 1, 1938, except those who have since quit or were dis-
charged for cause :
(a) City inspectors in the circulation department, to determine
whether they desire to be represented by Newspaper Guild of New
York, by American Federation of Labor Newspaper Organization
Council, or by Newspaper and Mail Deliverers' Union, or by none of
them, for the purposes of collective bargaining;
(b) All other employees except executives, employees who are cov-
ered by the contracts of Stereotypers' Union; Electrotypers' Union;
Paper Handlers' and 'Straighteners' Union; New York Newspaper
Printing Pressmen's Union ; Local Union No. 3, International Broth-
erhood of Electrical Workers; Newspaper and Mail Deliverers' Union;
Mailers' Union; Photo Engravers' Union; and Typographical Union;
employees who are members of or are eligible to membership in
Building Service Employees Local No. 32b; International Associa-
tion of Machinists; or Commercial Telegraphers' Union; employees
of Hearst International Advertising Service and those employees who
are in advertising merchandise research; employees of 'the American
Weekly; composing-room boys, city inspectors, temporary employees;
schoolboys who are part-time employees, including jumpers and con-
tract helpers and similar part-time boys; to determine whether they
desire to be represented by New York Newspaper Guild or by Amer-
ican Federation of Labor Newspaper, Organization Council for the
purposes of collective bargaining, or by neither.
[SAME TITLE
AMENDMENT TO DECISION AND DIRECTION OF
ELECTIONS
December 17, 1938
On December 5, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Elections in the
above-entitled proceedings directing the Regional Director for the
Second Region to conduct elections within fifteen (15) days from the
date of the Decision among certain employees of New York Evening
Journal, Inc., herein called the Company. In paragraph (b) of the
Direction the Board directed an election among certain employees,
but excluding those covered by contracts of Stereotypers' Union;
Electrotypers' Union; Paper Handlers' and Straighteners' Union;
New York Newspaper Printing Pressmen's Union ; Local Union No.
DECISIONS AND, ORDERS ` . ` 217
3, International Brotherhood of Electrical Workers; Newspaper and
Mail Deliverers' Union ; Mailers' Union ; Photo Engravers' Union ;
and Typographical Union ; employees who are members of or eligible
to membership in Building Service Employees Local No. 32b; Inter-
national Association of Machinists; or Commercial Telegraphers'
Union, as well as certain other employees, to determine whether they
desire to be represented by New York Newpaper Guild or by Ameri-
can Federation of Labor Newspaper Organization Council for the
purposes of collective bargaining. The Regional Director for the
Second Region has advised the Board that all the interested parties
have stipulated and agreed that one or more of the Company's em-
ployees are members of International Alliance of Billposters and Bill-
ers of America, Local No. 2, American Federation of Labor, and are
covered by the terms of an informal agreement between said Union
and the Company. The parties, therefore, requested that these one
or more employees be excluded from the unit in which an election is
to be held. The Board hereby approves said stipulation.
The Board hereby amends the Direction of Elections by adding to
paragraph (b) of the Direction the words "and International Alli-
ance of Billposters and Billers of America, Local No. 2, American
Federation of Labor", following the words "Commercial Teleg-
raphers' Union."
The Board having been further advised by the Regional Director
for the Second Region that a longer period within which to hold the
elections is necessary, and that the ballots of some of the employees
who are eligible to participate must be cast by mail, hereby amends
the Direction of Elections by (1) striking therefrom the words
"within fifteen (15) days from the date of this Direction" and sub-
stituting therefor the words "as soon as convenient and beginning as
promptly as is practicable after the date of this Direction", and (2)
adding to said Direction of Elections the following words : "The
Board also expressly authorizes the Regional.Director for the Second
Region to use the United States mail for the purposes of the election.
In providing for the taking of ballots by mail, the Regional Director
shall specify the date by which envelopes containing returned ballots
must be mailed. Ballots returned in envelopes postmarked at a later
date shall not be counted. Each employee who is permitted to vote
by mail shall be notified of the date by which he must mail his ballot."
10 N. L . R. B., No. 14a.