Times Publishing Co.

National Labor Relations Board - Board DecisionsSep 19, 1938

8 N.L.R.B. 1170 (N.L.R.B. 1938)

In the Matter of TIMES PUBLISIIING COMPANY and THE NEWSPAPER GUILD OF DE rnol r Case No. R-771.Decided September 19, 1938 Ncwspaper Publishing Induati y-Ina,esttgatioii, of Representatives: contro- versy concerning representation of employees: employer desires election and certification by Board of bargaining representative betore entering into further negotiations, controversy concerning appropriate unit-Boat Appropriate for Collective Bai gaining: all employees, excluding executives, temporary and part- time employees, and employees who belong or are eligible to belong to other unions in plant; plant-Wide; functional coherence; economic interdependence; prior bargaining by departmental unit based on limited organization held not conclusive in determination of appropriate unit-Representatives: proof of choice : membership application cards and petitions ; comparison of union list with names on pay roll-Certafieation, of Representatives. upon proof of majority representation Mr. Charles F. MeErlean and Mr. Harry N. Casselman, for the Board. Butzel, Levin d Winston, by Mr. Isadore Levin and Mr. Harry L. Winston, of Detroit, Mich., for the Company. Isserman, Isserman cC Kapelsohn, by Mr. Abraham J. Jsserman, of Newark, N. J., for the Guild. - Mr. Charles M. Kirk, of Detroit, Mich., for Detroit Stereotypers Union No. 9. Mr. Frank A. Kolb, of Detroit, Mich., for Detroit Typographical Union No. 18. Mr. Ray Carroll, of Detroit, Mich., for Building Service Employees International Union. Mr. Fred Ballbach, of Detroit, Mich., for Detroit Photo Engravers Union No. 12. Mr. Morn/3 Lipshy, for Newspaper Drivers' and Handlers' Local Union No. 372. Mr. Samuel E. Jones, for Detroit Mailers' Union No.,40. Mr. Garrett Stone, for Detroit Paper Handlers' and Plate Han- dlers' Union No. 10. Mr. Richard H. Meigs, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE On March 18, 1938, The Newspaper Guild of Detroit, herein called the Guild, filed with the Regional Director for the Seventh Region L R. B., No. 144S N 1170 DEOrSTONS AND ORDERS 1171 (Detroit, Michigan) a petition alleging that a question affecting com- merce had arisen concerning the representation of employees of Times Publishing Company, Detroit, Michigan , herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 28, 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, or- dered an investigation and authorized the Regional Director to con- duct it and to provide for an appropriate hearing upon due notice., On April 11, 1938, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and upon the Guild. Thereafter copies of a notice of continuance were issued and duly served upon the Company and the Guild. On April 22, 1938, the Regional Director issued a supplemental notice of hearing, copies of which were duly served upon Detroit Web Pressmen's Union No. 13, Detroit Paper Handlers' and Plate Handlers' Union No. 10, Detroit Mailers' Union No. 40, Newspaper Drivers' and Han- dlers' Local Union No. 372, International Brotherhood of Teamsters, Chauffeurs , Stablemen and Helpers of America , Detroit Stereo- typers' Union No. 9, Detroit Typographical Union No. 18, Interna- tional Brotherhood of Electrical Workers, Local Union No. 58, Build- ing Service Employees International Union, and Detroit Photo Engravers' Union No. 12, herein collectively referred to as the nine other unions, labor organizations representing or claiming-to represent certain employees of the Company . Thereafter a second notice of con- tinuance was issued, copies of which were duly served upon the Com- pany, the Guild, and the nine other unions. Pursuant to the notice, the supplemental notice, and the continuances , a hearing was held on May 2, 4, 5, and 6, 1938, at Detroit, Michigan, before Mapes David- son, the Trial Examiner duly designated by the Board. The Board, the Company, and the Guild were represented by counsel and par- ticipated in the hearing . Seven of the nine other unions appeared and were represented other than by counsel . No appearances were filed for Detroit Web Pressmen's Union No. 13 and International Brotherhood of Electrical Workers Local Union No. 58. Full op- portunity to be heard, to examine and to cross -examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing the Trial Examiner granted the Company's request to file certain motions at a later stage of the hearing, nunc pro tune. These motions were filed on May 6, 1938, and in substance prayed that the entire proceeding be dismissed on certain constitutional grounds and that certain parts of the petition 117213-39-vol 8-75 1172 NATIONAL LABOR RELATIONS BOARD be stricken. The Company renewed these motions at the close of the hearing and, in addition, made a motion to determine the ques- tion concerning representation by an election according to depart- ments of the Company, and various other motions. All these motions were denied by the Trial Examiner. At the hearing the Trial Exam- iner allowed a motion by the Guild to amend, its petition so as to clarify the description of the bargaining unit contended for by the Guild. No new issues were raised by the amendment. 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 . The rulings are hereby affirmed. By a letter dated May 12, 1938, the Company submitted a request for oral argument before the Board. It further requested that the Trial Examiner make an Intermediate Report in this proceeding prior to the oral argument, setting forth findings of fact and recom- mendations . The Board denied the Company 's request for an Inter- mediate Report, but granted its request for oral argument. On July 26, 1938, pursuant to notice , a further hearing was held before the Board in Washington , D. C., for the purpose of oral argument. The Company and the Guild were represented by counsel and par- ticipated in the oral argument. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Times Publishing Company is a Michigan corporation engaged in the business of printing and publishing the Detroit Times, a daily and Sunday newspaper. Its principal offices and printing plant are located in Detroit, Michigan. Substantially all the newsprint and ink used by the Company are obtained from outside the State of Michigan . The Company 's aver- age annual consumption of newsprint amounts to approximately 24,000 tons, valued at approximately $1,200,000. The Detroit Times has an average daily circulation of approximately 308,489 copies, and an average Sunday circulation of approximately 407,199 copies. Ap- proximately 1.3 per cent of the daily, and 12.5 per cent of the Sun- day papers are circulated and distributed outside the State of Michi- gan. The Detroit Times subscribes to and receives material from news , feature, and photographic services in all parts of the country. It also receives advertising which originates outside the State of Michigan, and itself advertises its newspaper in publications in vari- ous parts of the United States and Canada. DECISIONS AND ORDERS 1173 The Company is wholly owned by Hearst Publications, Incorpo- rated, and is a part of the Hearst organization of publications and press, radio, and film services which we considered in Matter of Wil- liamra Randolph Hearst, Hearst Publications, Inc., Hearst Consolidated Publications, Inc., Hearst Corporation, American Newspapers, Inc., and King Features Syndicate, Inc. and American Newspaper Guild, Seattle Chapter.' H. THE ORGANIZATIONS IN\OLVED The Newspaper Guild of Detroit is a labor organization affiliated with American Newspaper Guild, which in turn is affiliated with the Committee for Industrial Organization. Formerly American News- paper Guild admitted to membership only editorial employees of news publications and press services. Since June 7, 1937, when its constitution was amended, it has admitted to membership "any person gainfully employed 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 services and radio broadcasting facilities. Membership qualifications are identical for American Newspaper Guild and The Newspaper Guild of Detroit, except that the juris- diction of the latter is limited to Detroit, Michigan. The Newspaper Guild of Detroit is organized into employer units, one of which ad- mits only employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On February 25, 1937, as the result of negotiations between repre- sentatives of the Company and the Guild, the Company caused to be posted on its bulletin board a "statement of policy" pertaining to wages, hours, and other terms and conditions of employment in its edi- torial department. By its terms this "statement of policy" was to become effective on March 1, 1937, and continue in force for a period of one year and "as long thereafter as in the opinion of the management economic conditions justify." By a letter dated December 29, 1937, appropriate for the purposes of collectively bargaining within the purpose of concluding a new agreement. In its reply the Company asserted that the "statement of policy" was binding upon the Guild for the indefinite period set forth therein. After further correspond- ence a conference was held on or about March 22, 1938, between repre- sentatives of the Company and the Guild. At this conference the Guild sought recognition as representative not only of editorial em- 12 N. L. R. B. 530. 1174 NATIONAL LABOR RELATIONS BOARD ployees, but also of non-editorial employees, whatever their classifica- tion, excluding only those who were members of, or eligible for mem- bership in, established labor organizations contemporaneously active in the plant. In a letter to the Guild dated March 25, 1938, the Com- pany expressed its willingness to proceed with an election, under the direction and supervision of the Regional Director for the Seventh Region, among the employees which the Guild claimed to represent. By a letter, dated March 26, 1938, the Guild submitted a counterpro- posal which it deemed more expeditious, namely, that the Company and the Guild request the Board to make an investigation of the Guild's majority status as indicated by application cards and other documentary evidence and to issue its certification on the basis thereof. In a letter dated April 4, 1938, the Company declined to accept the Guild's proposal reiterating its willingness to cooperate with the Board and the Guild in conducting a consent election. The parties were unable to agree upon the method for settling the question con- cerning representation. We find that a question has arisen concerning representation of the employees of the Company. 1V. THE EFEECT OF TILE 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 the employees of the De- troit Times, excepting those who are now members of, or within the established jurisdiction of, established labor organizations now active in the Times plant," constitute an appropriate bargaining unit. At the hearing the Guild amended its petition, alleging that the ap- propriate bargaining unit should be composed of all the employees of the Company, excluding only (1) executives with the power to hire and discharge employees, (2) employees who are members of the fol- lowing unions, now covered by existing labor contracts with the Com- pany : Detroit Typographical Union No. 18, Detroit Stereotypers' Union No. 9, Detroit Mailers' Union No. 40, Detroit Paper Handlers' and Plate Handlers' Union No. 10, Detroit Web Pressmen's Union No. 13, International Brotherhood of Electrical Workers, Local Union DECISIONS AND ORDERS 1175 No. 58, and Detroit Photo Engravers' Union No. 12, (3) members of and those eligible to membership in the following unions which have contracts or other collective bargaining arrangements with the Com- pany : Newspaper Drivers' and Handlers' Local Union No. 372, and Building Service Employees International Union, and (4) members of and those eligible to membership in the International Association of Machinists and Brotherhood of Carpenters. The Guild also desires to exclude from the unit certain part-time and temporary employees. The Company's position is that employees of each department con- stitute an appropriate bargaining unit or, alternatively, that the em- ployees of each department should vote separately to determine whether or not they desire to be included in a larger unit. For administrative purposes the Company has assigned its em- ployees to the following departments: Editorial, advertising, circula- tion, business, and mechanical. The advertising department of the Company solicits advertisements, prepares copy for advertisements, determines within limits the num- ber of pages of each edition, and indicates the position of the adver- tisements on each page by blocking out space on a sample page. In- cluded in the advertising department are advertising solicitors, make- up men, artists, messengers, and stenographers. The editorial department prepares and edits all the matter appear- ing in the newspaper other than advertisements. Reporters and correspondents gather the news and either write news stories or furnish information to rewrite men for the preparation of news stories. Photographs are obtained from staff photographers and from syndi- cates. The Company receives national and foreign news, comic strips, and feature articles from various press services. There are also feature writers and artists in the editorial department. The news editors or copy readers edit all material and write headlines and cap- tions. Make-up editors place the various items on the pages so as to fill the space left after advertisements have been blocked out on the sample page. The editorial department must send all copy to the coin- posing room before the editorial "dead-line," which is later than the "dead-line" for the advertising department. Included in the editorial department are reporters, rewrite men, photographers, artists, feature writers, messengers, or "copy boys," clerks, and stenographers. The mechanical department prints the newspaper. This depart- ment receives copy from the advertising and editorial departments, sets type, and makes photoengravings. Stereotype plates are cast for each page and placed in the presses which print the newspaper. In- cluded in this department are pressmen, photoengravers, composing room boys, stereotypers, machinists, electricians, and clerks. 1176 NATIONAL LABOR RELATIONS BOARD The circulation department receives the newspapers from the press- room and distributes them. Newspapers for mail delivery are labeled with subscribers' addresses and bundled in the mail room. Drivers receive newspapers for, handling by the Company's own delivery sys- tem and deliver them to news dealers. This department includes mailers, addressograph operators, drivers, stenographers, and clerks. The business department is in general the fiscal and administrative office for the Company's entire organization. This department pre- pares pay rolls and budgets and collects statistics on plant operations for the information of the management. Included in this depart- ment are accountants, clerks, stenographers, and telephone operators. 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 contain the latest news possible. Although each department is administratively separate, all are functionally interdependent. A shut-down in any department, resulting from a labor dispute, would in all likelihood cause a suspension of publication, or at least cripple the operations of the other departments. It was established at the hearing that various locals of American Newspaper Guild have entered into contracts with publishers covering only editorial employees. It was also established, however, that since the jurisdiction of the American Newspaper Guild was extended to cover commercial as. well as editorial employees as a result of action taken at its June 1937 convention and ratification of that action in September 1937 it has negotiated contracts with as-many as 18 news- papers covering both editorial and commercial employees. In some cases both types of employees are included under a single contract. In others, where a contract for editorial employees was already in existence, a separate contract was negotiated for non-editorial em- ployees. The previous bargaining between the Guild and the re- spondent upon the basis of the editorial employees as a separate unit is not conclusive. In the light of the above facts, and since the form of the unit sought by the Guild is not opposed by any other labor organization, it is apparent that, in general, the employer unit, ex- cluding employees in the specified crafts covered by contracts, is appropriate in this case. We shall proceed to consider several specific classes of employees, since it is necessary to define the unit more precisely. The Company's pay roll includes 21 employees whose exclusion from the appropriate unit is urged by the Company on the ground that they perform work of a confidential nature. Among them are secretaries to executives, and cashiers and bookkeepers. The record DECISIONS AND ORDERS 1177 shows that these employees perform only the usual duties of their respective callings and many are active Guild members. We will therefore include them in the bargaining unit. In the circulation department are three women addressograph op- erators. The duties of these operators include the preparation of lists for mailing, merchandising, advertising, pay roll, and other purposes. Their principal work, however, is the preparation of mailing lists. All other work is done on an overtime basis. At the time of the hear- ing, these workers were members of the Guild, although Detroit Mailers' Union No. 40, an affiliate of International Typographical Union, claimed jurisdiction over workers of this class, and produced evidence at the hearing in support of its claim. While the terms and conditions of employment of these employees have not been regulated and fixed by the contract between the Company and the Mailers' Union, the latter organization proclaimed its intention to admit these em- ployees into its membership and bargain collectively for them. From all the testimony, it appears that the Mailers' Union is in a position to bargain for these operators more advantageously than the Guild. On July 23,1938, the Mailers' Union filed an affidavit with the Board in Washington, D. C., stating that subsequent to the hearing in this proceeding the said three addressograph operators had voluntarily terminated their memberships with the Guild and, upon application to the Mailers' Union, were accepted into membership and have since been dues-paying members in good standing. Upon being informed of these circumstances, the Guild waived its claim to include them in the desired unit. We will accordingly exclude these employees from the unit under consideration. In the mechanical department there are about six composing room employees whose duties include handling galleys of type, melting metal for the linotype machines, and operating proof presses. Func- tionally these employees are closer to the compositors than to any other class of employees. However, they are ineligible to join the Detroit Typographical Union, No. 18, herein called the Typographical Union, unless they undergo a long apprenticeship. With one known excep- tion the employees of this group are not members of nor eligible to join the Typographical Union by reason of the aforesaid rule. All are now above the age limit of 21 fixed by the Typographical Union for beginning apprentices, in the absence of special dispensation from the union. The Typographical Union objects to the inclusion of these workers in the unit claimed by the Guild, yet it will not admit them to its own membership. Three of these men are members of the Guild. At least one is a member of the Typographical Union. In a similar situation which arose in Matter of Daily Mirror, Inc. and The New-- 1178 NATIONAL, , LABOR RELATIONS BOARD paper Guild of New York,2 we said, "If the typographical craft or- ganizations desired to bargain for them' we should be disposed to ex- clude 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 Union does not." We will, therefore, include them in the bargaining unit, excluding any who are members of or eligible for membership in Detroit Typographical Union No. 18._ The Company occasionally sends its reporters on special assign- ments to various places outside the State of Michigan . In addition the Company carries on its pay roll reporters who are permanently maintained in cities in Michigan other than Detroit and in cities in States other than Michigan. The Guild desires to bargain for these employees, and we find no reason to deny its request. We will include them in the bargaining unit. At the hearing the Company and the Guild agreed to exclude from the bargaining unit 27 employees whose names appeared on the Com- pany's list of employees who are not members of or bargained for by any other unmon.3 This group of employees is composed of executives with the power to hire and discharge, and temporary and part-time employees. We shall exclude them from the bargaining unit. We find that all employees of the Company, excluding executives, temporary and part-time employees, and employees who belong or are eligible to belong to Detroit Web Pressmen's Union No. 13, Detroit Paper Handlers' and Plate Handlers' Union No. 10, Detroit Mailers' Union No. 40, Newspaper Drivers' and Handlers' Local Union No. 372, International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Detroit Stereotypers' Union No. 9, Detroit Typo- graphical Union No. 18, International Brotherhood of Electrical Workers, Local Union No. 58, Building Service Employees Interna- tional Union, Detroit Photo Engravers' Union No. 12, International Association of Machinists, and Brotherhood of Carpenters,, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the employees of the Company the full benefit of their right to sel' -organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The unit which we have found to be appropriate included approxi- mately 348 persons on April 30, 1938. The Guild introduced in evi- dence membership application cards and petitions bearing approxi- mately 221 names appearing on the pay roll of the Company for April 20, 1938. The Company admitted the genuineness of some of 2 5 N L R B 362. 3 Board Exhibit No 12 DECISIONS AND ORDERS 1179 the signatures and offered no -controverting proof as to the others, which were supported by the oath of Guild witnesses. A comparison of the Guild membership application cards and petitions in evidence with the list of employees in the appropriate unit clearly indicates that the Guild represents a majority in the appropriate unit. We find that the Guild has been designated and selected by a major- ity of the employees in the appropriate unit as their representative for the purposes of collective bargaining . It is, therefore , the exclusive representative of all the employees in such unit for the purposes of collective bargaining and we will so certify. 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 Times Publishing Company, Detroit, Michi- gan, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company, excluding executives, temporary and part-time employees, and employees who belong or are eligible to belong to Detroit Web Pressmen's Union No . 13, Detroit Paper Han- dlers' and Plate Handlers' Union No. 10, Detroit Mailers' Union No. 40, Newspaper Drivers' and Handlers' Local Union No. 372, Literna- tional Brotherhood of Teamsters , Chauffeurs , Stablemen and Helpers of America, Detroit Stereotypers' Union -No. 9, Detroit Typographical Union No. 18, International Brotherhood of Electrical Workers Local Union No. 58 , Building Service Employees International Union, Detroit Photo Engravers' Union No. 12, International Association of Machinists, and Brotherhood of Carpenters, constitute a unit appro- priate for the purposes of collective bargaining , within the meaning of Section 9 (b) of the National Labor Relations Act. 3. The Newspaper Guild of Detroit is the exclusive representative of all the employees in such unit for the purposes of collective bargain- ing, within the meaning of Section 9 (a) of the National Labor Relations Act. CERTIFICATION OF REPRESENTATIVES 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 1, as amended, IT IS HEREBY CERTIFIED that The Newspaper Guild of Detroit has been designated and selected by a majority of all employees of Times 1180 NATIONAL LABOR RELATIONS BOARD Publishing Company, Detroit, Michigan, excluding executives, tem- porary and part-time employees, and employees who belong or are eligible to belong to Detroit Web Pressman's Union No. 13, Detroit Paper Handlers' and Plate Handlers' Union No. 40, Newspaper Drivers' and Handlers' Local Union No. 372, International Brother- hood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Detroit Stereotypers' Union No. 9, Detroit Typographical Union No. 18, International Brotherhood of Electrical Workers Local Union No. 58, Building Service Employees International Union, Detroit Photo Engravers' Union No. 12, International Association of Machinists, and Brotherhood of Carpenters, as their representative for the purposes of collective bargaining and that, pursuant to the provisions of Section 9 (a) of the Act, The Newspaper Guild of Detroit is the exclusive representative of all such employees for 'the purposes of collective bar- gaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. [SAME TITLE AMENDMENT TO CERTIFICATION OF REPRE- SENTATIVES September ^?8, 1938 On September 19, 1938, the National Labor Relations Board, Herein called the Board, issued a Decision and Certification of Rep- resentatives in the above-entitled matter. Detroit Mailers' Union No. 40 was inadvertently omitted from the list of labor organizations enumerated in the Certification of Representatives and Detroit Paper Hai-idlers' and Plate Handlers' Union No. 10 was erroneously des- ignated therein as Detroit Paper Handlers' and Plate Handlers' Union No. 40. The Board hereby amends its Certification of Representatives by striking out the words, "Detroit Paper Handlers' and Plate Handlers' Union No. 40," and inserting in lieu thereof the words, "Detroit Paper Handlers' and Plate Handlers' Union No. 10, Detroit Mailers' Union No. 40." S N. L R., B., No 144a