The Post-Standard Co.

National Labor Relations Board - Board Decisions

Aug 13, 1941

34 N.L.R.B. 226 (N.L.R.B. 1941)

In the Matter of THE POST-STANDARD COMPANY and INTERNATIONAL
PRINTING PRESSMEN & ASSISTANTS' UNION OF NORTH AMERICA
Case No. B-0618.-Decided August 13,1941
Jurisdiction : newspaper publishing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord recognition to union until it proves majority ; election necessary ;
petitioning international union's request for substitution of local union on
ballot, granted.
Unit Appropriate for Collective Bargaining : outside circulation employees of
the Company, including city district managers, news dealers' and street-
corner boys' supervisors, branch managers, country circulation employees, cir-
culation managers , and outside circulation subordinate employees, excluding
clerical and supervisory employees.
Definitions
Supervisors of street-corner boys and news dealers are employees within
the meaning of the Act despite Company's contentions that they are inde-
pendent contractors because of a change in the method of their payment
where the Company controls and directs their activities and there has been
no substantial change in the character of their work nor in their functional
relation to the Company's business.
Estabrook, Estabrook & Harding, by Mr. Charles S. Estabrook and
Mr. J. P. Burns, Jr., of Syracuse, N. Y., for the Company.
Ribyat, Walsh & Myers, by Mr. John J. Walsh, of Utica, N. Y., and
Mr. David R. Evans, of New Hartford, N. Y., for-the International.
Mrs. Augusta Spaulding, of counsel of the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On April 15, 1941, International Printing Pressmen & Assistants'
Union of North America, herein called the International, filed with
the Regional Director for the Third Region (Buffalo, New York) a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of The Post-Standard Com-
pany, Syracuse, New York," herein called the Company, and request-
1 The name of the Company appeared erroneously on the petition and other formal papers
They were amended at the hearing.
34 N. L. R B., No. 32.
226
THE POST-STANDARD COMPANY, 227
ing 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 21, 1941, 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 2, as amended, ordered an investigation
and authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice.
. On May 22, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and the Interna-
tional. Pursuant to notice, a hearing was held on May 29 and June 3,
1941, at Syracuse, New York, before Peter J. Crotty, the Trial Exami-
ner duly designated by the Chief Trial Examiner. The Company
was represented by counsel, and the International by counsel and a
representative; both participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
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. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
On June 17, 1941, the International, and on June 18, 1941, the Com-
pany, filed briefs which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Post-Standard Company owns and publishes The Post-Stand-
ard; a morning and Sunday paper, at Syracuse, New York. The Com-
pany uses raw materials, 95 per cent of which consist of news print,
metal, ink, and mats . Each year the Company uses 5,000 tons of news
print, all of which is manufactured at Lyons Falls, New York. Dur-
ing 1940 the Company used 183,896 pounds of ink, 50 per cent of which
was bought from W. C. Herrick Company, which operates a plant in
New Jersey where orders are received, and 50 per cent from Huber
Company, which receives orders in New York City and operates
one plant in New Jersey and one plant in the State of New York. All
meal type used by the Company is manufactured at Brooklyn, New
York. Fifty-five hundred mats which were used in the first 4 months
of 1941 came from points outside the State of New York. The cost
of mats is less than .2 of 1 per cent of the total cost of supplies and
equipment.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company maintains no reporting staff except in Syracuse and
neighboring towns. It uses wire reports of the Associated Press and
no other wire service. All the news picked up by the Associated
Press anywhere in the world flows to its distribution point in New
York City. The Post-Standard daily averages 160 columns of news,
the majority of which comes from the Associated Press. On request
the Company supplies news to the Associated Press. The Company
uses the following feature services : North American Newspaper Alli-
ance, New York News Syndicate, Bell Syndicate, United Feature
Service, George Matthew Adams, McClure Syndicate, King Feature
Service, F. J. Markey Syndicate, McNaught * Syndicate, Chicago
Tribune, and Associated Newspapers. Some of these services supply
newspapers throughout the country.
At the time of the hearing the daily circulation of The Post-
Standard amounted to 77,805, the Sunday circulation to 98,105. Of
this circulation .0048 per cent of daily papers were sold outside the
State of New York; .0019 per cent of Sunday papers were sold out-
side of the State of New York. During the first 4 months of 1941,
35 per cent of space in the daily papers and 18 per cent of space in
the Sunday papers represented advertising. National advertising
represents less than 5 per cent of the total advertising received from
sources outside the State of New York.
H. THE ORGANIZATION INVOLVED
International Printing Pressmen & Assistants' Union of North
America is a labor organization, affiliated with the American Federa-
tion of Labor. It admits to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In April 1941 a representative of the International met with repre-
sentatives of the Company and asked for recognition as bargaining
representative of employees in the circulation department. The Com-
pany demanded proof of the International's majority among such
employees. The International, thereupon, filed the petition in this
proceeding.
A statement prepared by the Regional Director and introduced'into
evidence discloses that the International has a substantial membership
among such employees.2
We find that a question has arisen concerning the representation
of employees of the Company.
2 In support of its claim to represent a majority of employees in its proposed unit, the
International submitted to the Regional Director 25 applications for membership, of which
1 is dated December 1936; 19, April 3, 1941; and 5, undated. The cards appear to bear
genuine signatures. There are about 36 employees in the appropriate unit.
THE POST-STANDARD COMPANY 229
W. 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
The Company and the International agree that city district man-
agers, branch managers, and country circulation employees belong
in an appropriate bargaining unit of outside circulation employees.
They disagree whether certain individuals fall within such categories
and whether certain supervisory and clerical employees should be
included in the unit. They further disagree whether, supervisors of
news dealers and street-corner boys belong in the circulation unit.
A. Employees serving the entire circulation department
The following employees serve the entire circulation department :
J. E. Estabrook, director of the department, who hires and discharges
circulation employees and supervises all activities of the department;
N. E. Billhardt, cashier, and R. B. Waters, assistant cashier of the
department, who are inside and clerical employees; and W. J. Oran,
who is in charge of galley lists in'the department, checking the number
of papers going out to various communities and noting additions and
cuts in the paper's circulation.3
The International desires to exclude, and the Company to include,
these four employees from the bargaining unit. Estabrook's work is
supervisory and the work of the other three employees is clerical in
character. We shall follow our usual custom and exclude these super-
visory and clerical employees from a unit of employees actively engaged
outside in promotion of the circulation of The Post-Standard.
B. City district managers
Within company-assigned districts, city district managers solicit
new business, supervise the distribution of The Post-Standard by news
carriers and their collection of money from subscribers. The Com-
pany distributes papers to carriers by truck. Each manager takes care
of complaints with respect to circulation by carriers within his area.
" Oran is primarily an inside and office employee . He also delivers bundles of papers
to the New York Central Railroad , but the record does not disclose in what quantity or.at
what times such deliveries are made.
461268-42-vol. 34-16
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
City district managers are salaried employees. They receive vacation
with full pay. The Company and the International agree that city
district managers should be included in the bargaining unit.
Charles K. Bockey, assistant to Estabrook, directly supervises city
district managers and sometimes substitutes for them., The Interna-
tional desires to exclude, the Company to include him in the unit.
Since he is clearly a supervisory employee, we shall exclude him from
the unit.
C. Supervisors of news dealers and street-corner boys
Four circulation men, called supervisors of street-corner boys and
news dealers, were salaried employees on the Company's pay roll until
1937. In 1937 the Company made a different financial arrangement
with them. Under such arrangement the Company sells them news-
papers at wholesale rates. They are billed weekly for such papers and
given credit for unsold papers which they.return. They resell these
papers to news dealers and street-corner boys. Although the evidence
is contradictory whether the price of the resale of papers to dealers and
newsboys is fixed by the Company, it appears to be uniform. Super-
visors solicit dealers for the resale of such papers. The Company,
assigns street corners within the city to the exclusive use of each
supervisor.
Three of the four supervisors receive a regular salary from the
Company for ,making deliveries of papers within and outside the city
in their own cars, upon which the Company pays part of the insurance
premiums. The fourth uses the Company truck or his own car for
deliveries for papers which he resells without specified compensation
for such service.
In connection with their distribution of newspapers, supervisors dis-
tribute, at Estabrook's direction, cards advertising features in The
Post-Standard. They furnish aprons to newsboys and collect used
aprons from newsboys for further use by inside employees of the Com-
pany. They hire their own substitutes for vacation periods, subject to
the approval of the Company. The Company allows $20 to each
supervisor toward this expense.
Supervisors attend weekly meetings, over which Estabrook pre-
sides, at which problems of promotion are discussed' and comparative
circulation figures made public. Supervisors are praised or taken
to task at these meetings. They report weekly the numbers of news
dealers and street-corner boys which they serve. The results of their
sales are checked and compared by the Company. Explanations are
asked for declines in sales or increases in returns for credit. The evi-
dence is contradictory whether attendance at these Wednesday meet-
ings is voluntary. The Company does not allege that such attendance
is irregular.
THE POST-STANDARD COMPANY 231
Although the Company contends that in 1937 the relation between
these supervisors changed from that of employees to independent con-
tractors , it does not appear that there was at that time any substantial
change in the character of their work and its functional relation to
the business of the Company. The weekly meetings between the Com-
pany and these news dealers indicate the extent of the Company's
control of its news distribution and the close association between Esta-
brook and the supervisors . There is nothing to indicate that the
Company exercises less control over the policies of the distribution of
its papers through news dealers and street-corner boys than it does
through news carriers to the homes of its subscribers. Complaints
on the service of the paper from news dealers and patrons of street-
corner boys are handled through the Company's office in the same
way as such complaints ; are handled when they arise from the news
carriers ' service. The Company has instructed one supervisor to sat-
isfy a complaint made against another's service. The fact that in 1937
the Company changed the method of paying these supervisors does
not in itself indicate a change in their relation to the Company. We
find that the Company presently directs and controls their activities
in distributing The Post-Standard and promoting its circulation. In
view of the broad meaning of the word employee as used in the Act,
and the declared policies and purposes of the statute , we find that
such supervisors are employees of the Company within the meaning
of Section (3) of the Act. We shall include them in the bargaining
unit.'
D. Branch circulation managers
The Company and the International agree that branch circulation
managers at Cortland , Ithaca, Oneida, Rome, and Seneca Falls, New
York, should be included in the appropriate unit. Such managers
distribute The Post-Standard to carrier boys in the community and
remit money for such papers to the Company . They are , carried on
the Company's pay roll as salaried employees , but derive additional
profit from sales of the paper, which they promote.
Roy LaFave is a circulation employee at Malone, New York. He
also secures rural subscriptions for the Company . At the hearing the
International classed LaFave with the three subordinate employees
mentioned below for exclusion . At the hearing the International
stated that it had no information concerning LaFave's work. The
Company alleges that La Fave is branch manager at Malone. We find
that LaFave is a branch manager and is properly included with other
branch managers in the bargaining unit.
4 See Matter of Seattle Post-Intelhgencer Department of Hearst Publications , Inc., and
Seattle Newspaper Guild, Local No 82, 9 N. L R B 1262
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edward Hixson, assistant to Estabrook, supervises branch man.
agers and country circulation employees. In emergencies, he substi-
tutes for branch managers. The international desires to exclude him,
and the Company to include him in the unit. Since he is primarily
a supervisory employee, we shall exclude Hixson from the bargaining
unit.
E. Outside circulation subordinate employees
Three employees, Paul Mulcahy, Frank Pagliarli, and Herbert
Todd, are outside circulation men. They are subordinate employees
and not branch managers. They canvass and solicit business for the
Company. Todd works in the Ithaca office as assistant to Branch
Manager Conboy. Pagliarli and Mulcahy solicit business out of their
homes at Watertown and Auburn, respectively: Mulcahy has sub-
stituted for branch managers and assists his father, circulation man-
ager at Auburn. The three employees are salaried employees under
the immediate supervision of $ixson. They are hired by Estabrook.
The International desires to exclude these employees because they are
subordinate employees. The Company desires to include them. Since
they do the same type of work as branch managers, we shall include
them in the appropriate unit.
F. Circulation managers
The branch managers noted above are listed on the Company's pay
roll. Four circulation managers, Murphy at Fulton, Shanahan at
Fulton, Carpenter at Oswego, and J. Mulcahy at Auburn, are not
listed on the Company's pay roll as branch managers. The Company
contends that they are independent contractors. The International
contends that they are employees and branch managers and that there-
fore they should be included in the appropriate unit.
Each of these four circulation managers is supplied with an office
and telephone by the Company. Paid correspondents of the Company
also work from these offices. Each'manager submits a weekly expense
account to the Company. Such expense accounts include items for
transportation of papers, office-boy help, adjustment for the sale of
papers at unusually low prices to boys who deliver them unusually
great distances, weekly premiums to news boys, and supplies. The
Company sets no geographical limitation upon the area in which these
circulation managers work. The record does not indicate that it ex-
tends beyond the community served at each town. Although the
Company contends that these managers are not limited to the handling
of The Post-Standard, the record does not disclose that any manager
handles another newspaper. Each manager carries an open account
with the Company for papers which are sold him at wholesale rates.
THE POST-STANDARD COMPANY 233
Credit is given for papers not resold. Each manager resells his papers
to news boys for further resale by them. Such resale prices appear
to be uniform. The managers' income from the circulation department
is derived entirely from this sale and resale of papers.5
Hixson keeps track of the Company's circulation under each of these
circulation managers. Each manager submits to him.a weekly report
of distribution, sales, rates, and cash, similar to reports submitted by
branch managers who are admittedly employees of the Company.
Circulation managers share in circulation-promotion devices and con-
tests. They attend weekly meetings. Although the Company con-
tends that their attendance is voluntary, the managers believe that it
is required of them. They are permitted to include on their weekly
expense accounts items for the cost of such attendance. The Company
pays for a vacation substitute for each circulation manager. He
arranges with Hixson for a mutually convenient time for his vacation.
The Company contends that there is a degree of difference between
the supervision which Hixson gives to salaried branch managers and
his supervision over these four circulation managers, but the record
does not disclose any such difference. We find that the four circula-
tion managers are employees of the Company and shall include them
with branch managers in the bargaining unit.
We find that outside circulation employees of the Company, in-
cluding city district managers, news dealers' and street-corner boys'
supervisors, branch managers, country circulation employees, circula-
tion managers, and outside circulation subordinate,employees, but ex-
cluding clerical and supervisory employees, constitute a unit appro-
priate 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 effectuate
the policies of the Act .6
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation of employees
of the Company can best be resolved by, and we shall accordingly direct,
an election by secret ballot.
Those eligible to vote in the election'shall be employees in the ap-
propriate unit who were employed during the pay-roll period im-
mediately preceding the date of our Direction of Election, subject to
such limitations and additions as are set forth in the Direction of
Election.
' Additional income may be derived from the news and advertising departments of the
Company, for occasional reporting and advertising services, respectively.
9 Employees included within the appropriate unit at the time of the hearing are listed in
Appendix A.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 22, 1941, the International chartered Syracuse Outside
Circulation Employees Union No. 392, which admits to membership
employees of the Company. The International requests that this local
union be designated in place of the International on the ballot. We
shall grant the request.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of The Post-Standard Company, Syracuse, New
York, within the meaning of Section 9 (c) and Section 2 (6) and (7) of
the Act.
2. Outside circulation employees of The Post-Standard Company,
Syracuse, New York, including city district managers, news dealers'
and street-corner boys' supervisors, branch managers, country circula-
tion employees, circulation managers, and outside circulation sub-
ordinate employees, but excluding clerical and supervisory employees,
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the 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 Relations Act,
and pursuant to Article III, Section 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DmECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with The Post-
Standard Company, Syracuse, New York, an election by secret ballot
shall be conducted as early as possible but not later than thirty (30)
days from the date of this Direction of Election, under the direction
and supervision of the Regional Director for the Third 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
outside circulation employees of the Company who were employed dur-
ing the pay-roll period immediately preceding the date of this Direc-
tion of Election, including city district managers, street-corner boys'
and news dealers' supervisors, branch managers, country circulation
employees, circulation managers, outside circulation subordinate, em-_
ployees, and employees who did not work during that pay-roll period
because they were ill or on vacation or in the active military service or
training of the United States, or temporarily laid off, but excluding
supervisory and clerical employees and employees who have since quit
THE POST-STANDARD COMPANY 235
or been discharged for cause, to determine whether or not said em-
ployees desire to be represented by Syracuse Outside Circulation Em-
ployees Union No. 392 for the purposes of collective bargaining.
APPENDT% A
Donald H. Miller
Fred M. Seamon
Joseph Greco
Paul E. Towsley
Ephriam L. Weisman
Leon L. Prentiss
Melvin D. Rose
City District Managers
James E. Smith
William A. Roberts
John A. Coyle, Jr.
William J. McNamara
Peter J. Haley
Ralph Monticello
Harry Goldberg
News dealers' and street-corner boys supervisors
F. LaVenture J. Castellani
H. Ardner L.r,Hale
Branch Circulation Managers
Lauren W. Herbst-Rome R o b e r t M . Flickinger-Seneca
John F. Buckley-Oneida Falls
Louis L. Vasse-Cortland Roy G. LaFave-Malone
John J. Conboy-Ithaca
Country Circulation Employees
Joseph H. Holliday Harry F. Pratt
Gordon D. Barrows Ivan S. Evans
George W. Billhardt Jerry F. Reilly
Clifton D. Symonds
Circulation Managers
Joseph Mulcahy-Auburn R. Carpenter-Oswego
R. Shanahan-Fulton L. Murphy-Fulton
Outside Circulation Subordinate Employees
Paul Mulcahy-Auburn Frank Pagliarli-Watertown
Herbert W. Todd-Ithaca