Weekly Publications, Inc.

National Labor Relations Board - Board Decisions

Jul 5, 1938

8 N.L.R.B. 76 (N.L.R.B. 1938)

In the Matter of WEEKLY PUBLICATIONS, INC. and NEWSPAPER
GUILD OF NEW YORK
Case No. R-809.-Decided July 5, 1938
News Magazine Publishing Industry-Investigation of Representatives: con-
troversy concerning representation of employees : refusal of employer to recog-
nize petitioning union as representative of any employees not members ; con=
troversy concerning appropriate unit-Unit Appropriate for Collective Bargain-
ing: editorial department employees , excluding executives and including
employees in Newsphoto department , Washington employees , the department
editors, writers , copy readers , research writers, clippers , typists, secretaries,
library staff, make-up staff , photographic staff, and part -time employees ;
economic interdependence ; community of interest ; desire of employees-Repre-
sentatives : proof of choice : comparison of pay roll with union membership
application cards and petition-Certification of Representatives : upon proof of
majority representation.
Mr. Albert Ornstein, for the Board.
Whitman, Ransom, Coulson e Goetz, by Mr. William L. Ransom
and Mr. Pincus M. Berkson, of New York City, for the Company.
Isserman, Isserman & Kapelsohn, by Mr. Abraham J. Isserman,
of Newark, N. J., for the Guild.
Mr. Robert L. Condon, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On December 30, 1937, the Newspaper Guild of New York, herein
called the Guild, filed with the Regional Director for the Second
Region (New York City) a petition alleging that a question affecting
commerce had arisen concerning the representation of employees' of
Weekly Publications, Inc., New York City, herein called the Com-
pany, and requesting- an investigation and certification of representa-
tives pursuant to Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. On March 8, 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,
8 N. L. R. B., No. 8.
76
DECISIONS AND ORDERS 77
ordered an investigation and authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due
notice.
On May 6, 1938, the Regional Director issued a notice of hearing,
copies of which were served upon the Company and the Guild.
Pursuant to the notice a hearing was held on May 13, 1938, and
continued on May 18, 1938, at New York City, before William Seagle,
the Trial Examiner duly designated by the Board. The Board, the
Company, and the Guild were represented by counsel and partici-
pated 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.
At the beginning of the hearing, the Trial Examiner permitted
the Guild to amend its petition to particularize the description of
the unit claimed to be appropriate and to strike out certain other
matters. This ruling is hereby affirmed. The Trial Examiner per-
mitted the Company to file an answer to the amended petition, alleg-
ing in substance that, because of the peculiar nature of the work
of editorial writers, it would be improper to certify the Guild as
exclusive representative of all the editorial writers, including those
who did not desire to be represented by the Guild. On this ground
and upon other grounds stated orally during the course of the hear-
ing, the Company moved to dismiss the petition. The, Trial Exam-
iner denied the motion. His ruling is hereby affirmed. During the
course of the hearing the Trial Examiner made several other rulings
on motions and 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 June 7, 1938, the Company filed a brief which the Board has
duly considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY 1
Weekly Publications, Inc., is a corporation organized under the
laws of the State of New York on December 23, 1936. The Com-
pany maintains its principal place of business at No. 1270 Sixth
Avenue, Borough of Manhattan, New York City.
The Company is engaged in the business of editing, publishing and
selling to the public a weekly news magazine known as Newsweek,
1 The facts found in this section are based upon a stipulation entered into by counsel for
the Board and counsel for the Company
78 NATIONAL LABOR RELATIONS BOARD
which selects, summarizes, and interprets what it deems to be signifi-
cant news of the week. News material and photographs are ob-
tained, edited, and prepared for publication. Advertising space in
Newsweek is sold, and advertising matter is published.
The Company conducts and operates at No. 1270 Sixth Avenue,
New York City, its general administrative, circulation, advertising,
editorial, and photographic departments, where among other things
advertising, news, photographs, and editorial material and special
articles are received and prepared for publication.
The magazine is printed on behalf of the Company by a printing
establishment in Dayton, Ohio. The editorial, advertising, and
photographic copy is sent from New York City by the Company to
the printer in Dayton, Ohio, by means of regular mail, air mail, and
the American Telephone and Telegraph Company teletype. After
being printed, the magazines are distributed from the plant of the
printer in Dayton, Ohio, to subscribers throughout the United States,
Canada, and in foreign countries, by means of the United States
mail and to news stands throughout the United States by means of
the S-X News Company, Inc.
The average weekly circulation of Newsweek is approximately
300,000 copies. Of this circulation approximately 6 per cent is
delivered to points within the State of Ohio, and approximately 94
per cent is delivered to points outside the State of Ohio. Likewise
approximately 10 per cent is delivered to points within the State of
New York and approximately 90 per cent is delivered to points
outside the State of New York.
At the principal place of business of the Company in New York
City, informative material constituting news service is from time
to time received from the International News Service and other
sources. Photographs are purchased and received from various na-
tional photographic agencies. News copy, photographs, and other
material originate in part at points outside the State of New York,
including foreign countries. News, editorial, and photographic ma-
terial is received at such offices from part-time correspondents of the
Company located in Washington, District of Columbia; Paris,
France; Cambridge, Massachusetts; New Haven, Connecticut; and
other points.
The Company maintains and operates branch offices in Paris and
Washington, at which branch offices employees or agents of the
Company engage in securing and preparing news and editorial ma-
terial, photographs for publication, comments upon and interpreta-
tion of news events, and the like.
The name Newsweek is registered in the United States Patent
Office.
DECISIONS AND ORDERS
H. THE ORGANIZATION INVOLVED
79
Newspaper Guild of New York is a labor organization affiliated
with American Newspaper Guild, which in turn is affiliated with the
Committee for Industrial Organization.
American Newspaper Guild admits to membership employees de-
voting a major portion of their time to an editorial, business, circula-
tion, promotion, advertising department, or allied groups of em-
ployees, 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 Newspaper Guild of New York except that the jurisdic-
tion of the latter is limited to New York City and environs. News-
paper Guild of New York is organized into employer units, one of
which admits only employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On October 29, 1937, the Guild submitted to the Company a no-
tarized statement of the number of members who were employees
,of the Company and demanded the right to be the exclusive bargain-
ing agent for all of the editorial employees, since it claimed to repre-
sent a majority. In reply the Company expressed willingness to
negotiate with the Guild for its members only. It refused to bargain
with the Guild as the exclusive representative of the editorial em-
ployees, on the ground that it doubted whether the Guild had a
majority and that the unit described was not appropriate.
We find that a question has arisen concerning 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, as amended, the Guild alleged that "all of the em-
ployees in the editorial department of said publication, excluding
only executives, and including department editors, writers, copy
so NATIONAL LABOR RELATIONS BOARD
readers, researchers, clippers, typists, secretaries, library staff, make-
up staff and photographic staff" constituted an appropriate unit. In
its answer and at the hearing the Company opposed this contention,
taking the position that certain of the employees claimed by the Guild
are not in the editorial department. The Company- further main-
tained that a unit containing editorial writers and clerical employees
is not appropriate. Although it was willing to negotiate with the
Guild for its own members in whatever capacity employed, it insists
that the Guild cannot be certified as an exclusive representative of
all the employees in the unit claimed to be appropriate.
The Company introduced two pay rolls, one containing the names
of all the employees in the editorial department and the other the
names of the employees in the Newsphoto department. Included
among the editorial department employees are the various editors,
writers, make-up assistants, research writers, typists, secretaries, clip-
pers, photo department employees, librarians, and others who are
responsible for the writing and editing of copy for the magazine.
Without exception these employees are intimately connected with the
editorial process. The duties of the editors, writers, and make-up
assistant are clearly editorial. The research writers not only check
the factual accuracy of stories that appear in the magazine, but also
interview people and occasionally write stories. The typists prepare
the final copy that goes to the printer; the secretaries, in addition
to routine correspondence and telephone calls, prepare the letters and
answers that are printed in the magazine; the clippers watch news-
papers for "futures" and make telegraphic inquiries about pending
news stories ; the librarians have charge of the "morgue" and help
the research writers; the photo department assists in the selection
and preparation of the photographs that appear in the magazine.
The employees in the various categories have a functional interde-
pendence which justifies their inclusion in the same unit.
There are seven employees in the Newsphoto department in New
York City. Four of them work on the same floor of the same build-
ing as do the other Newsweek employees. Of the other three, two
are stationed in a darkroom located in another building, and the
third is a photographer who reports to, the darkroom where he
develops' his pictures, but spends most of his time obtaining pictures
of the various events occurring in New York City. The Newsphoto
department is a picture agency owned by the Company. This de-
partment supplies pictures to Newsweek and to others who may wish
to purchase them. It receives pictures from its own photographers,
from Newsweek, and from various other sources throughout the
world. Although the Company contends that this department is not
editorial but comes under the supervision of the business manager,
we find that these employees are intimately connected with the as-
DECISIONS AND ORDERS 81.
sembling and preparation of the material appearing in the magazine.
In a magazine like Newsweek the photographs are of almost the same
importance as the text. The Newsphoto employees participate in the
picture conference that selects the pictures for the magazine, and
two of the Newsphoto employees write most of the captions which
appear under the pictures that are printed. The Newsphoto files and
the picture files of the magazine are in the same room. Some of the
Newsphoto employees spend part of their time working in the photo
department of the magazine. Every picture that appears in the mag-
azine must be recopied in the Newsphoto darkroom. All News-
photo pictures are submitted first to the magazine before they can be
disposed elsewhere. The salesman for Newsphoto spends at least
half his time doing work of an editorial nature for the magazine,
such as suggesting stories and writing captions. The pay checks
of these seven employees are signed in the same manner as those of
the editorial employees, and the Newsphoto employees received their
vacation notice from Rex Smith, the managing editor of Newsweek.
Furthermore, all seven signed a petition designating the Guild as
their representative for the purposes of collective bargaining. We
find that the employees in the Newsphoto department in New York
City should be included within the unit.
The Company maintains bureaus at Washington and at Paris.
The Guild desires to include the Washington employees in the unit
and to exclude the Paris employees. At Washington the Company
employs a correspondent, an assistant, a secretary, and a photog-
rapher. The correspondent is listed as an editorial employee, the
photographer as in the Newsphoto department, and the other two as
part time in each category. The Company does not oppose the in-
clusion of the Washington employees in the unit unless these em-
ployees do not wish to be represented by the Guild. Under these
circumstances we shall include the Washington employees in the
appropriate unit and exclude the Paris employees.
The Guild desires to exclude as executives with the power to hire
and discharge the following employees : The managing editor, the
business assistant to the editor, the news editor, the editor of the
Nation and Periscope department, the editor of the Foreign depart-
ment, and the editor of the Business department. The Company
produced no evidence to show that they were not supervisory officials
other than the assertion of counsel for the Company that some of
them had no power to hire and discharge. We shall exclude them
from the unit.
Several employees in the editorial department were listed as part-
time. The Guild desired to exclude those who worked less than 21/2
days a week and include those who worked more than that period.
It appears, however, that all of them are permanently employed by
82 NATIONAL LABOR RELATIONS BOARD
the Company even though they are not full-time employees. We do
not believe that these employees, otherwise within the appropriate
unit, should be excluded for the sole reason their employment is not
on a full-time basis. We shall, therefore, include all part-time
employees in the unit.
We find that the editorial department employees, excluding execu-
tives and including the employees of Newsphoto department, the
Washington employees, the department editors, writers, copy readers,
research writers, clippers, typists, secretaries, library staff, make-up
staff, photographic staff, and part-time employees, constitute a unit
appropriate 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.
VI. THE DETERMINATION OF REPRESENTATIVES
During the course of the hearing, the Guild introduced in evidence
the application cards for membership in the Guild of 38 employees
in the appropriate unit. In addition, it introduced a petition signed
on May 19, 1938, by 46 of these employees. The authenticity of these
signatures was not disputed by the Company. An examination of
the pay rolls reveals that there are 63 employees within the appro-
priate unit.
We find that the Guild has been designated and selected by a ma-
jority of the employees in the appropriate unit as their representa-
tive for the purposes of collective bargaining. It is, therefore, the
exclusive representative of all 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 Weekly Publications, Inc., New York City,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of
the National Labor Relations Act.
2. The editorial department employees, excluding executives and
including the employees of Newsphoto department, the Washington
employees, the department editors, writers, copy readers, research
writers, clippers, typists, secretaries, library staff, make-up staff,
photographic staff, and part-time employees, constitute a unit ap-
propriate for the purposes of collective bargaining, within the mean-
ing of Section 9 (b) of the National Labor Relations Act.
3. Newspaper Guild of New York is the exclusive representative
DECISIONS AND ORDERS 83
of all employees in such unit for the purposes of collective bargaining,
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 Newspaper Guild of New York has
been designated and selected -by a majority of the editorial depart-
ment employees of Weekly. Publications, Inc., New York City,
excluding executives and including the employees of Newsphoto
department, the Washington employees, the department editors,
writers, copy readers, research writers, clippers, typists, secretaries,
library staff, make-up staff, photographic staff, and part- time em-
ployees, as their representative for the purposes of collective bargain-
ing and that, pursuant to the provisions of Section 9 (a) of the Act,
Newspaper Guild of New York is the exclusive representative of all
such employees for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, and other conditions
of employment.
117213-39-vol. 8--7