Tribune Publishing Co.

National Labor Relations Board - Board Decisions

Sep 23, 1941

35 N.L.R.B. 690 (N.L.R.B. 1941)

In the Matter of TRIBUNE PUBLISHING COMPANY and NEWSPAPER DRIV-
ERS AND HELPERS UNION, LocAL No. 763, CHARTERED BY INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION
OF LABOR.
Case No. R-2795.-Decided September 23, 1941
Jurisdiction : newspaper publishing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition; election necessary.
Unit Appropriate for Collective Bargaining : all circulation-department workers
including the district managers, the office managers, and the motor route and
bundle route carriers, but excluding the circulation manager, assistant cir-
culation manager, stenographers and typists, mailers, retail news dealers, re-
tail newsboys and carrier boys ; district managers included despite request
of Company for their exclusion ; motor route and bundle route drivers who
are found to be employees and not independent contractors as Company con-
tends included in unit.
Henderson, Carnahan and Thompson, by Mr. L. L. Thompson, of
Tacoma, Wash., for the Company.
Mr. Samuel B. Bassett, of Seattle, Wash., for the Union.
Mr. Milton E.,Harris, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 20, 1941, Newspaper Drivers and Helpers Union, Local
So. 763, chartered by International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, affiliated with
the American Federation of Labor, herein called the Union, filed
with the Regional Director for the Nineteenth Region (Seattle,
Washington) a petition alleging that a question affecting commerce
had arisen concerning the representation of employees of Tribune
Publishing Company, Tacoma, Washington, herein called the Com-
pany, and requesting an investigation and certification of represen-
35 N. L. R. B., No. 150. 1
690
TRIBUNE PUBLISHING COMPANY 691
tatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On July 5, 1941, the Na-
tional Labor Relations Board, herein called the Board, acting pur-
suant 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 Di-
rector to conduct it and to provide for an appropriate hearing upon
due notice. On July 18, 1941, the Regional Director issued a notice
of hearing, which was duly served upon the Company and the Union.
Pursuant to notice, a hearing was held on July 24, 1941, at Tacoma,
Washington, before William A. Babcock, Jr., the Trial Examiner
duly designated by the Acting Chief Trial Examiner. The Company
and the Union were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-exam-
ine witnesses, and to introduce evidence bearing on the issues was
afforded both parties. At the close of the hearing, the Company
moved to strike all testimony concerning the motor route and bundle
route carriers, on the ground that they were not employees of the
Company. The Trial Examiner reserved ruling on this motion. For
the reasons 'hereinafter stated, the motion is hereby denied. During
the course of the hearing, the Trial Examiner made various rulings
on other motions and on objections to the admission of evidence. The
Board has reviewed these rulings and finds that no prejudicial errors
were committed. The rulings are hereby affirmed. On August 6,
1941, the Company filed a brief, 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
Tribune Publishing Company is a Washington corporation en-
gaged in publishing two newspapers, the Evening News Tribune and
the Sunday Ledger News Tribune, in Tacoma, Washington. In 1940,
the Company purchased approximately 3,000 tons of newsprint paper
and 4 carloads of ink, obtained entirely from outside the State of
Washington. The Company is a member of the Associated Press
and the North American Newspaper Alliance; world-wide news and
features are transmitted by wire to the Company by these organiza-
tions. Features, columns, and comic strips are also obtained from
about 10 or 12 syndicates, such as the Des Moines (Iowa) Register
Tribune, King Features Syndicate of New York, Bell Syndicate of
New York, McNaught Syndicate of New York, Publishers' Syndi-
cate of Chicago, and United Features. Such items are ' received
almost entirely from points outside the State of Washington, and
451270-42-vol. 35-45
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
comprise a substantial portion of the items published by the Com-
pany. Advertisements are also received from points outside the
State of Washington. The Company employs approximately 200
employees.
II. THE LABOR ORGANIZATION INVOLVED
Newspaper Drivers and Helpers Union, Local No: 763, chartered
by International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization affiliated with
the American Federation of Labor, admitting to membership em-
ployees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On March 17, 1941, the Company refused the Union's request for
recognition as the representative of all the outside circulation-
department workers. ,
The Trial Examiner reported at the hearing that the Union repre-
sents a substantial number of employees in the unit hereinafter found
to be appropriate.'
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 Union claimed that a unit consisting of all
,circulation-department workers excepting the circulation manager,
assistant circulation manager, stenographers and typists, mailers, re-
tail news dealers, retail newsboys and carrier boys, engaged in the
' The Union submitted to the Trial Examiner • 21 card 's designating the Union as
collective bargaining representative ( 19 dated in December 1940 and the remaining 2
,dated in February and March 1941 ), and 1 membership application dated in November
,1940, all bearing apparently genuine signatures , 18 of which represented names appearing
on a list of employees as of July 24, 1941, showing a total of 27 persons in the unit.
There was also submitted to the Trial Examiner a letter addressed to the Union signed'
,by seven district managers withdrawing their membership applications. All were ap-
parently genuine signatures , and six of the seven signatures were names appearing on
said list of employees. ,
TRIBUNE -PUBLISHING COMPANY 693
sale and distribution of the Company's newspapers in Tacoma, Wash-
ington, and vicinity, is appropriate for the purposes of collective
bargaining .2 The Company contested none of the exclusions sought
by the Union, but contended that the district managers, the office man-
agers of the Puyallup and the Olympia offices, and the motor route
and bundle route carriers should also be excluded from the unit.
The district managers, of whom the Company employed nine as
of July 24, 1941, and the office managers of the Puyallup and the
Olympia offices, of whom there are two, are listed by the Company
as outside circulation-department employees. They do no manual
labor,s but supervise the newsboys and carrier boys in their respective
districts. The Company argues that the district and office managers
are sufficiently dissimilar from other outside circulation-department
employees, both in the nature of their work and in their interests, to
warrant their exclusion from the unit and, further, that they are
supervisory employees. However, the Company did not establish that
there was any difference in, function or interest which would warrant-
their exclusion from a unit consisting of other outside circulation-
department employees. Moreover, the parties are in agreement as
to the exclusion of the retail newsboys and carrier boys whom the
district and office managers supervise, and the Company makes no
claim that the managers 'supervise any employees in the claimed unit.
The Company further argues that, if these contentions be rejected,
the district managers should be permitted to determine for themselves
whether or not to be included within the unit. In support of this
contention the Company points out that, following the district man-
agers' designation of the Union as their representative, a majority
of them wrote the Union a letter stating that they felt that there was,
C4no justification in our affiliating ourselves" with the Union, and
formally withdrawing their membership applications. The district
managers , however, do not seek to be represented in a separate col-
lective bargaining unit. We find, under the circumstances herein
presented, that the district and office managers are properly included
in a unit consisting of circulation-department employees.
The Company contends that the motor route and bundle route car-
riers are independent contractors and as such should be excluded
from the unit. These carriers, seven of whom were employed on
July 24, 1941,4 operate under a contract with the Company whereby
2 The Union also requested the exclusion of "truck drivers who are members of Teamsters
Local 313 ." The record discloses that such truck drivers are employed , not by the
Company, but by Scott's Speedy Service , which hauls about 95 per cent of the Company's
- newspapers
2 One of the district managers also acts as a bundle route carrier part of the time.
*Including one individual designated as a "bundle route and news stand " carrier, but
excluding the individual described in footnote 3 above.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they solicit subscriptions in certain assigned territory, buy the neces-
sary newspapers from the Company at wholesale, deliver the news-
papers to their customers in their own cars, and collect for them at
the established rate, receiving car allowance. The circulation man-
ager or his assistant can terminate the contracts of these carriers if
their performance is not satisfactory, and in that way their work is
supervised by the Company; in addition, it is "understood" that they
will not work for a competing newspaper. The Company admits,
moreover, that these carriers form a part of the Company's distri-
bution system, and frequently refers to them as "employees." - We
have in the past found that such persons are employees within the
meaning of the act, 6 and we so find in the instant case. We shall
include the motor route and bundle route carriers in the appropriate
unit.
We find that all the Company's circulation-department employees
engaged in the sale and distribution of the Evening News Tribune
and the Sunday Ledger News Tribune in Tacoma, Washington, and
vicinity, including the district managers, the office managers of the
Puyallup and Olympia offices, and the motor route and bundle
route carriers, but excluding the circulation manager, assistant cir-
culation manager, stenographers and typists, mailers, retail news
dealers, retail newsboys and carrier boys, constitute a unit appropri-
ate 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 will otherwise
effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of employees of the Company can best be resolved by
means of an election by secret ballot. The parties expressed no
opinion concerning an eligibility date. The employees eligible to
vote shall be those who were employed during the pay-roll period
immediately preceding the date of this Direction of Election, subject
to such limitations and additions as are set forth in the Direction. 8
6 See Matter of Seattle Post-Intelligencer Department of Hearst Publications, Inc. and
Seattle Newspaper Guild, Local No. 82, 9 N. L. R. B. 1262; Matter of The Constitution
Publishing Company and Atlanta News Carriers and Circulation Employees' Union No. 445,
affiliated with the International Printing Pressmen & Assistants' Union of North America,
29 N. L. R B. 105. The Company contends that the Post-Intelligencer decision is not
applicable in the instant case because it was based on a stipulation between the competing
unions, to which the employer did not object However, the Board said in that case.
at p 1272, that the status of the motor route carriers,as employees , having been called
into question , was not an issue to be disposed of by the stipulation . Accordingly, we find
the Company's contention without merit.
I The motor route and bundle route carriers , although not on the Company 's pay roll,
shall be eligible to vote on the same basis as other employees in the unit.
TRIBUNE PUBLISHING COMPANY 695
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 Tribune Publishing Company, Tacoma,
Washington, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act.
2. All the Company's circulation-department employees engaged
in the sale and distribution of the Evening News Tribune and the
Sunday Ledger News Tribune in Tacoma, Washington, and vicinity,
including the district managers, the office managers of the Puyallup
and the Olympia offices, and the motor route and bundle route car-
riers, but excluding the circulation manager, assistant circulation
manager, stenographers and typists, mailers, retail news dealers,
retail newsboys and carrier boys, constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Sec-
tion 9 (b) of the National 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, 49 Stat. 499, 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 authorized by the Board
to ascertain representatives for the purposes of collective bargain-
ing with Tribune Publishing Company, Tacoma, Washington, 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 Nineteenth 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 all the Company's
circulation-department employees engaged in the sale and distribu-
tion of the Evening News Tribune and Sunday Ledger News
Tribune in Tacoma, Washington, and vicinity, who were em-
ployed during the pay-roll period immediately preceding the
date of this Direction, including the district managers, the
office managers of the Puyallup and the Olympia offices,
and the motor route and bundle route carriers, and employees
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
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States, or temporarily laid off, but excluding the circulation
manager, assistant circulation manager, stenographers and typists,
mailers, retail news dealers, retail newsboys and carrier boys, and
those persons who have since quit or been discharged for cause, to
determine whether or not they desire to be represented by News-
paper Drivers and Helpers Union, Local No. 763, chartered by Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, affiliated with the American Federation of
Labor, for the purposes of collective bargaining.