Triangle Publications, Inc.

National Labor Relations Board - Board Decisions

Dec 21, 1944

59 N.L.R.B. 1190 (N.L.R.B. 1944)

In the Matter of TRIANGLE PUBLICATIONS, INC. and NEWSPAPER GUILD
OF NEW YORK, AFFILIATED WITH AMERICAN NEWSPAPER GUILD, CIO
Case No. 2-R-4939.-Decided December 931, 1944
Bell, Murdock, Paxson cC Dilworth, by Mr. George M. Neil, of
Philadelphia, Pa., for the Company.
Is.'serman, Isserman d Kapelsohn, by Mr. Sol D. Kapelsohn, of
Newark, N. J., for the Guild.
Miss Frances Lopinsky, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by Newspaper Guild of New
York, affiliated with American Newspaper Guild, CIO, herein called
the Guild, alleging that a question affecting commerce had arisen
concerning the representation of employees of Triangle Publications,
Inc., New York City, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before David H. Werther, Trial Examiner. Said hearing was held
at New York City on November 9 and 13, 1944. The Company and
the Guild appeared, participated, were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded an opportunity to file briefs with the Board.
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 having its
principal place of business in Philadelphia, Pennsylvania, and a
'branch office in New York City. It is engaged in the business of pub-
lishing, printing, and distributing several publications, among them,
59 N. L R. B., No. 214.
1190
TRIANGLE PUBLICATIONS, INC.
one known as "Daily Racing Tab," herein called the Tab, with which
these proceedings are concerned. During the 12-month period preced-
ing the hearing, the Company purchased less than $5,000 worth of raw
materials consisting of newsprint used in connection with the publica-
tion of the Tab, approximately 90 percent of which was shipped to
the office of the Tab from points outside the State of New York.
During the same period, it distributed finished products valued in
excess of $50,000, approximately 25 percent of which was shipped to,
points outside the State of New York.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Newspaper Guild of New York, affiliated with American Newspaper
Guild, which is affiliated with the Congress of Industrial Organiza-
tions, is a labor organization admitting to membership employees of
the Company.
M. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Guild as
the exclusive- bargaining representative of its employees until the
Guild has been certified by the Board in an appropriate unit.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Guild represents a substantial number of em-
ployees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Company's employees engaged in the publication of the Tab
are a general manager, his secretary, a bookkeeper, a clerk who aids
the bookkeeper, two errand boys, one typist, two circulation depart-
ment employees, and three editorial employees, one of whom writes
editorials and news stories, one of whom writes a daily column, all. of
whom handicap horse races. The paper is not set ujp or printed by
employees of the Company. The parties are in agreement that twa
of the editorial employees and the clerk may properly be included
within an appropriate unit and that the general manager, a super-
1 The Field Examiner reported that the Guild submitted eight application authorization
cards, six of which bore signatures of persons listed on the Company 's pay roll which con-
tained the names of seven employees in the appropriate unit; and that the cards were
dated in July and August 1944.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visory employee; his secretary, a confidential employee who handles
matter relative to labor relations; the bookkeeper, an independent con-
tractor who does similar work for a number of other clients; and the
employees in • the circulation department, who are presently repre-
sented by a union other than the Guild, shall be excluded from the unit.
The Company contends that James Davenport, one of the editorial
employees, is a supervisory employee and that he should be excluded
from the unit as well as the errand boys and typist, all of whom are
school boys and part-time employees. The Guild contends that Daven-
port is not a supervisory employee and that the part-time employees
are proper components of the appropriate unit.
The Company based its contention that Davenport is a super-
visory employee upon the fact that he has been designated in the
masthead of the paper as editor, that he receives a salary which is
much higher than that received by other employees of the Tab, that
he at one time owned an interest in the paper, that he has made
complaints to the general manager concerning employees, some of
whom were subsequently discharged, and that he gives advice and,
suggestions to other editorial workers. It appears, however, that for
the past 2 years, Davenport's name has been eliminated from the
masthead and that his duties were not affected thereby. Moreover,
the Company admitted that the name was used as editor, in part,
for "personal reasons." 2 The mere designation of Davenport as
editor does not make him a supervisory employee, although his
higher salary might be indicative of such a status. It is admitted
by all parties that the work done by the editorial employees is
routine, requiring no instruction or daily apportioning of work, and
that with the exception of writing a column, Davenport's work
differs little from that of his coworkers. It appears that he exercises
no supervisory functions. He has no authority to determine the
content of the paper. All policy is dictated by the manager or by
higher executives of the Company. 'Orders are given by the manager,
or those higher in authority, direct to the editorial employee' who is
to carry them out; they are not transmitted through Davenport.
The two other editorial employees, not Davenport, direct the work
of the errand boys. He writes neither news stories nor editorials,
nor is the work of the editorial writer submitted to him for editing.
He does occasidnally give advice or assistance to the other editorial
employees. It appears, however, that he receives similar advice and
assistance from them. As for the allegation that Davenport's com-
' These reasons seem to include the facts that Davenport is well known in racing circles
and it is necessary, under postal regulations , that at least once a year a newspaper declare
the name of its editor. Cohen, one of the other editorial employees, for a number of years
was listed as managing editor in the Tab's masthead. Cohen at one time had something to do
with the printing and circulation of the paper.
TRIANGLE PUBLICATIONS, INC. 1193
plaints concerning other employees prove his supervisory status,
Davenport and the other editorial employees contend that his com-
plaints were made not as a supervisor but as a disgruntled employee;
that other employees also took their complaints direct to the general
manager; that conferences among all editorial employees and the
general manager were a customary prelude to changes in routine or
personnel in the editorial room. Under all the circumstances, we are
•of the opinion that Davenport is not a supervisory employee. We
shall, therefore, include him within the appropriate unit.
The Company contends that its two errand boys should be excluded
from the unit because their work keeps them out of the office a great
deal of the time, because it differs in nature from that performed by
editorial employees, and because they are part-time employees. The
Company objects to the inclusion of the typist solely because his
employment is on a part-time basis. All three of these employees
work regularly 6 days a week. They have been employed for periods
ranging from 10 to 18 months and no termination of their employ-
ment is presently contemplated. The fact that these schoolboys will
probably seek full-time work elsewhere upon completion of their
education does not, as contended by the Company, make their present
employment temporary. They, therefore, have a sufficient interest
in the working conditions of the Company to warrant their inclusion
in the unit if they are otherwise qualified. The typist's affinity with
the employees in the agreed unit is not questioned. The close inter-
relation of the work of the errand boys with that of the editorial
employees 3 and the small number of the Company's employees out-
weigh the differences in the work of errand boys and others in the
unit and make feasible their being represented in one unit for the
purposes of collective bargaining. We shall, accordingly, include
errand boys as well as the typist in the appropriate unit.
We find that all employees of the Company engaged in and about
the publication of its Daily Racing Tab, including editorial employees,
errand boys, the typist, and the clerk, but excluding the general
manager, the private secretary to the general manager, the bookJeeper,
and employees in the circulation department, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (c) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
'Most of the factual material appearing in the Tab comes by teletype into the offices
of another newspaper owned by the Company. The errand boys copy this material and
bring it to the editorial employees who collate and explain it.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth in
the Direction .4
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 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Triangle Publica-
tions, Inc., New York City, an election by secret ballot shall be con-
ducted 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 Second Region, acting in this' matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among the
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction, including employees who did not work during
the said pay-roll period because they were ill or on vacation or
temporarily laid off, and including employees in the armed forces of
the United States who present themselves in person at the polls, but
excluding any who havo, since quit or been discharged for cause and
have not been rehired or reinstated prior to the date of the election,
to determine whether or not they desire to be represented by
Newspaper Guild of New York, for the purposes of collective
bargaining.
* The Guild requests that it be designated on the ballot as Newspaper Guild of New York.
The request is hereby granted.