Triangle Publications, Inc.

National Labor Relations Board - Board Decisions

Mar 6, 1942

39 N.L.R.B. 547 (N.L.R.B. 1942)

in the Matter of TRIANGLE PUBLICATIONS ,. INC. and LOS ANGELES
NEWSPAPER GUILD, CIO
Case No. R-3421.-Decided March 6,-19,42
Jurisdiction : racing news publishing industry.
.Investigation and Certification of Representatives : existence of question: refusal
by Company to negotiate with union; Company's contention that question con-
cerning representation of employees in unit claimed.by union could not affect
commerce within meaning of Act because of the' exclusively local scope of the
duties of such employees, held without merit; election necessary.
Unit Appropriate for Collective Bargaining : all full-time delivery drivers at the
Company's Los Angeles, California, plant, excluding part-time, emergency and
relief drivers.
Cosgrove & O'Neil, by.A/fr. F. B. Yoakum, Jr., of Los Angeles, Calif.,
for, the Company.
Mr. John A. Cronin and Miss L'rcel Daniel, of Los Angeles, Calif.,
for the Guild.
Mr. Armin Uhler, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 4, 1941, Los Angeles Newspaper Guild, CIO, herein'
called the Guild, filed with the Regional Director for the Twenty-first,
Region (Los Angeles, California),•a, petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Triangle Publications, Inc., Los Angeles, California, herein
called the Company, and requesting an investigation and certification
of representatives pursuant to Sectioii 9 (c) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. On November 18,
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. .
39 N. L. R. B., No. 95.
547
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 3, 1941, the Regional' Director issued a notice of
hearing, copies of which were duly served upon the Company and the
Guild. Pursuant to notice, and to an order postponing hearing dated
December 8, 1941, a hearing was held on December 22 and 23, 1941,
at Los Angeles, California,, before Richard A. Perkins. the Trial
Examiner duly designated by the Chief Trial Examiner. The Com-
pany and the Guild were represented by counsel,and official repre-
sentatives. All participated in the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
'to introduce evidence bearing on the issues. At the beginning of the
hearing, the Tiial Examiner denied an application previously filed by
the Company for the issuance of certain subpenas ad testificandum and
duces tecum. During the course of the- hearing the Trial Examiner
made various rulings on motions and on objections to the. admission
of evidence. The Boaid has reviewed the rulings of the Trial Exami-
ner and finds that no prejudicial errors were committed. The rulings
are hereby affirmed. On January 8 and 13, 1942, iespectively, the
Company and the Guild 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
Triangle Publications, Inc., is a Delaware corporation with principal
offices at Philadelphia, Pennsylvania. The Company, among other
cities in various States of the United States, maintains a plant at Los
Angeles, California, for the publication of racing news in the form of
a "Daily Racing Form" and a "Scratch Sheet."
During the period from January 1 to November 1, 1941, the Com-
pany purchased for its Los Angeles branch news print ' paper, ink,
metal, mats, and printing machinery, valued at approximately $42,-
931.58, of which materials- valued at approximately $41,388.05
originated outside the State of California. During the same period
the Company distributed from ats Los Angeles plant 4,012,900 copies
of the Daily Racing Form and Scratch Sheet valued at $750,250. Of
this total, 299,760 copies, valued at $74,882.40 were sold to customers
outside the State of California. The Company makes use of the
International News Service. -
II. THE ORGANIZATION INVOLVED
Los Angeles Newspaper Guild is a labor organization affiliated with
the Congress of Industrial Organizations admitting to membership
employees of the Company.
TRIANGLE PUBLICATIONS, INC. 549
III. THE QUESTION CONCERNING REPRESENTATION
Sometime during the second half of 1941, the Guild commenced to
organize the employees at the Company's Los Angeles plant. On
September 20, 1941, the Guild wrote to the Company alleging that it
represented a majority of the employees in the Company's Commercial
Department and requesting a conference for the purpose of negotiating
a contract . No reply was received to this communication and on or
about September 24, 1941, a Guild representative called the Company
on the telephone. The Guild's representative was informed at the
time that no one was present at the Company's office with authority
to bargain collectively with the Guild. On September 30, the Guild
representative called personally at the Company's office, but was
again informed that the Company's manager was absent and would
not return until the end of October. On November 4, 1941, the
Guild filed its petition herein.
From a statement prepared by the Regional Director, which was
introduced in evidence, 'it appears that the Guild represents a sub-
stantial number of the employees in the alleged appropriate -unit.'
We find that a question-has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I, above, has a close, intimate, and substantial
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 Company's
Circulation Department constitute an appropriate bargaining unit.
I The Regional Director 's statement recites that the Guild, in support of its membership claims, sub-
mitted 10 application cards, of which 7 were signed August 27, 1941, 2 August 28, 1941, and one September
18, 1941. The statement further sets forth that the signatures affixed to these cards appear to be genuine,
and that 9 of the signatures correspond to the names of full-time employees , and one to the name of a tempo-
rary employee on the Company 's pay roll of October 1, 1941 At the time of the hearing there were 11 em-
ployees in the alleged appropriate unit.
P The Company has taken the position that any question concerning the representation of the employees
sought to be represented by the Guild could not affect commerce within the meaning of the' Act, since the
functions of these employees are confined to the distribution of the Company's publications in the Los
Angeles metropolitan area within the State of California , and are not concerned with the activities of the
Company which are concededly within the purview of the Act We find no merit in this contention
See Matter of The Texas Company and Building Service Employees Local Union No. 75, 21 N. L R B 110,
Virginia Electric & Power Co. v. N. L R B., 62 S. Ct . 344, reversing and remanding on other grounds 115 F.
(2d) 414 (C C. A. 4), setting aside on other grounds Matter of Virginia Electric & Power Company and Trans-
port Workers Union of America , 20 N. L. R. B. 911 ; Southern Colorado Power Co. v. N L. R B., 111 F. (2d)
539 (C . A. A. 10), enforcing Matter of Southern Colorado Power Co. and H. H. Stewart et at., 13 N. L. It. B. 699.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing and in its brief the Guild defined its claim-as embracing
the employees "engaged in the physical distribution" of the Company's
publications, naming specifically 11 of the 16 "drivers" listed on the ,/
Company's pay roll under "Delivery." The Company contends that
the unit proposed by the Guild is inappropriate,' and that, because of
the functional coherence of the non-mechanical departments 4 at the
plant, the appropriate unit should embrace all circulation, office and
administrative, as well as delivery employees, and may or may not
include editorial employees.
For the purposes of its publications the Company maintains at
Los Angeles an organization which closely parallels that of an ordinary
newspaper. News items are gathered at various race tracks and
breeding stables by a staff of reporters. After being rewritten by the
editorial staff, the news finds its way into the Daily Racing Form or
the Scratch Sheet by way of the usual mechanical operations performed
in the Composing, Stereotyping, and Press Departments. The finished
papers are prepared in the Mail Room for distribution,to out,of town
dealers by express, bus, or mail Distribution to local dealers within
the Los Angeles metropolitan area is effected through delivery em-
ployees or drivers.
At the time of the hearing, the Company had in its employ 15 em-
ployees under the classification "Delivery." 6 Of these employees 10
are full-time delivery drivers. One is an emergency driver and 3 are '
relief drivers who make deliveries either as part of or in addition to
their regular duties. One of the 15 employees,is a part-time delivery
employee.
The Guild seeks to represent the 10 full-time drivers and the
emergency driver. However, it requests the exclusion from the unit of
the 3 relief drivers 6 and of the part-time employee.
The Company's full-time drivers are assigned routes or territories
within the Los Angeles metropolitan area where they distribute pre-
determined quantities of Scratch Sheets and ,Racing Forms to news
dealers. The drivers report at the plant each day to pick up these
publications as they come off the press. Publications are charged to
-the individual accounts of the drivers who collect for them and account
for collections each morning. Full-time drivers are paid weekly
salaries. These salaries are adjusted to the size of the several terri-
tories and include compensation for the use and maintenance-of the
cars which are furnished by the drivers. Due to the nature of their
functions full-time drivers spend only a small part of their- time at the
3 See also footnote 2 above.
The mechanical departments are designated on the Company 's pay roll as Composing Room, Stereo-
typing Room , and Press Room. The employees in these departments are represented by their respective
craft unions.
5 The pay roll introduced in evidence lists 16 delivery employees , but the record indicates that one had
been laid off prior to the date of the hearing.
4 These employees receive overtime compensation for making deliveries.
. T'RIANGLE' PUBLICATIONS, INC. 551
plant and have little if any contact with other employees of the
Company.
One of the 3 relief drivers is a "return clerk" whose principal duties
consist in counting and recording the number of papers returned daily
by dealers and drivers. This employee also assists in the Mail Room
and on Sundays acts as watchman. The second relief driver is pri-
marily a watchman and janitor, while the third is a machinist's helper.
The part-time employee on 6 days a week spends from 1'/2 to 2 hours
making local deliveries.
The emergency driver whom the Guild desires to have included in
the unit performs a variety of duties. During the racing season he
delivers publications to various racing tracks in the Los Angeles area
and takes charge of the news boys there, while in off-season he per-
forms clerical,work at the plant. In addition to these duties he acts
as emergency driver in cases of illness or car break-downs of regular
drivers.
It is clear that the 10 full-time drivers form a separate and distinct
,group among the employees of the Company. They perform duties
which keep them almost entirely outside the plant. They have
practically no contact with other employees and the method of com-
puting their wages is peculiar to the special nature of their work.
Furthermore, the record shows that organization by the Guild of the
Company's employees has been limited entirely to drivers alleged by
the Guild to constitute an appropriate unit. On the other hand, the
substantial differences in the duties of the emergency driver, claimed
by the Guild, and of the relief and part-time drivers, and their intimate
association with other departments in the plant preclude their inclu-
sion in a unit of drivers.
Under these circumstances we find that all full-time delivery drivers
at the Company's plant, excluding part-time, emergency, and relief
drivers, constitute a unit appropriate for the purposes of collective
bargaining which will insure to employees of the Company the full
benefit of their right to self-organization and to collective bargaining
and otherwise will effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning representa-
tion can best be resolved by an election'by secret ballot. The Guild in
its brief suggests that employees who may have been laid off between
the time of the hearing and the election, on account of war restrictions
on racing activities, should be permitted to vote in the election.
Since we shall direct that employees temporarily laid off be per-
mitted to vote, we find no reason for departing from our usual
practice. We shall accordingly direct that the employees of the Com-
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany eligible to vote in the election shalllbe those in the appropriate
unit who were employed during the pay-roll period immediately pre-
ceding the date of our Direction of Election, subject to the limitations
and additions set forth in the Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OFILAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Triangle Publications, Inc., Los Angeles,
California, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act.
2. All full-time delivery drivers, excluding part-time, emergency
and relief drivers, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Na-
tional Labor Relations Act. '
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations- Series 2, as amended, it
is hereby
DIRECTED that, as part of the investigation ordered by 'the Board
to ascertain representatives for the purposes of collective bargaining
with Triangle Publications, Inc., Los Angeles, California, 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, under the
direction and supervision of the Regional Director for the Twenty-first
Region, acting in this matter as agent for the National Labor Rela-
tions Board and subject to Article III, Section 9, of said Rules and
Regulations, among all full-time delivery drivers employed by the
Company during the pay-roll period immediately preceding the date
of this Direction Qf Election, including those who did not work during
such 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 part-time emergency, and relief drivers and all
such drivers who have since quit or been discharged for cause, to
determine whether or not they desire to be represented by Los Angeles
Newspaper Guild, CIO, for the purposes of collective bargaining.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Election.