Interborough News Co.

National Labor Relations Board - Board Decisions

Aug 9, 1943

51 N.L.R.B. 1169 (N.L.R.B. 1943)

In the Matter of INTERBOROIIGH NEWS COMPANY and BOOK & MAGAZINE
UNION, LOCAL 18, U. O. P. W. A.
Case No. R-5713.-Decided August 9, 19.113 ,
Hines, Rearich, Dorr & Hammond, by Mr. Ar.hie 0. Dawson, and
Mr. Henry Bruckner, of New York City, for the Company.
Mr. Samuel M. Sacher, of New York City, for Local 18.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Book & Magazine Union, Local 18, U. O.
P. W. A., herein called Local 18, alleging that a question affecting
commerce had arisen concerning the representation of employees' of
Interborough News Company, New York City, herein called the Com-
pany, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before James C. Paradise, Trial Exam-
iner. Said hearing was held at New York City on July 20, 1943. The
Company and Local 18 appeared and participated.' All parties 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 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
Interborough News Company is engaged in the wholesale distribu-
tion of magazines and newspapers in the metropolitan area of New
York City. Its principal office is in New York City. During the
3 Magazine Distribution Workers, herein called the Independent , also served with notice,
did not appear at the hearing.
51 N. L. R. B., No.,182.
1169
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
calendar year 1942, approximately 115,585,000 copies of magazines
and newspapers, valued at $6,509,750, were delivered to the Company,
of which approximately 6.37 percent by value was shipped to the
Company from points outside the State. During the same period the
Company distributed approximately 15.48 percent of its newspapers
and magazines from two points outside the State.
II. THE ORGANIZATIONS INVOLVED
Book & Magazine Union, Local 18, U. O. P. W. A., is a labor organi-
zation affiliated with the Congress of Industrial Organizations, admit-
ting to membership employees of the Company.
Magazine Distribution Workers was an unaffiliated labor organiza-
tion, admitting to membership employees of the Company.
M. THE QUESTION CONCERNING REPRESENTATION
Local 18 asked the Company for recognition as bargaining repre-
sentative of the Company's office employees. The Company refused,
on the ground that a contract between the Company and Magazine
Distribution Workers, herein called the Independent, constituted a bar
to such recognition. On April 19, 1943, Local 18 filed the petition in
this proceeding.
On August 18,1939, the New York State Labor Relations Board cer-
tified the Independent as sole bargaining representative of the
Company's office employees. Thereafter, on December 21, 1939, the
Company and the Independent entered into an exclusive bargaining
contract, and, on June 27, 1941, a further contract, which by its terms
is in effect until May 31, 1944.2 Local 18 contends that the Independ-
ent has ceased to exist as a labor organization and that consequently
the employees concerned have no bargaining representative to enforce
their rights under the contract.
In July 1942, an organizer of United Office and Professional
Workers of America, with which the petitioner herein is affiliated,
addressed members of the Independent concerning the advantages
of their affiliation with the larger labor organization. On this occa-
3ion the president of the Independent made an urgent appeal for
me payment of membership dues and the more active general support
of the members to their labor organization, whether or not the sug-
gested affiliation was effected. Of 35 members present at this meeting,
18 voted against, and 17 for, affiliation.- There are about 190 em-
ployees in the bargaining unit. At a subsequent meeting, held in
August or September 1942, 10 or 15 members of the Independent
It appears that contracts for terms of 3 years are not uncommon in the newspaper
industry . We do not, however , decide that a 3-year term is a reasonable period in this case.
INTERBORO'UGH NEWS COMPANY 1171
were present. Between November 27, 1942, and May 14, 1943, of
approximately 190 office employees, 149 left the Company's employ
and 138 new employees were hired. None of these new employees
has become a member of the Independent. The contract between
the Company and the Independent provides that not less than 30
days prior to May 31, 1943; either party may request conferences for
a revision of the wage scale for the balance of the term of the con-
traetthat is, from June 1; 1943, to May 31, 1944. The Independent
did not request the wage conference during the time specified and
the opportunity for desirable wage adjustments was thus lost. Since
July 1942 the Independent has collected no dues.3 Since September
1942 there has been no meeting of its members or of its executive
committee,' and no grievances have been discussed, and no confer-
ences held, with the Company.
The Company contends that, under its constitution, the Inde-
pendent cannot cease to exist as long as 7 members desire to continue
it. and, further, that the failure of the Independent to strengthen.
its membership, to hold meetings, and to assert its rights asan active
bargaining representative is due to the disloyalty and deliberate,
neglect of its president, who has recently become a member of Local
18 and who admitted at the hearing that, both before and after join-
ing the petitioning union, she was active in urging her fellow em-
ployees, to change their union affiliation. The record does not
disclose that any employee of the Company presently desires that
the Independent continue as a labor organization representing the
Company's employees. Whatever may be the causes for the dis-
affection of the Company's employees for the Independent, it is clear
that at the time of the hearing at least 138 of the Company's 190
office employees were not, and had never been, members of the Inde-
pendent; that the Independent had no officers who were presently
administering its affairs; that the members who formerly attended
meetings did not wish to accept office in the Independent ; that it had
collected no dues for a year; that it had held no meetings for a period
exceeding 10 months; and that during the same period it had not
dealt with the Company in any way on behalf of any employee for
whom it had been certified the sole bargaining representative by the
5 The treasurer of the Independent left the Company's employ in June 1942 and no
member was willing to assume the duties of this office. The president of the Independent
appointed members in the several departments of the Company's office to collect dues
therein. No dues were collected after July 1942.. Lack of money in the treasury to hire
a suitable meeting hall is one reason for the failure of membership meetings.
' The constitution of the Independent provides for seven officers, a president, vice presi-
(lent, treasurer, secretary, and three trustees, who shall together constitute the executive
committee. At the time of the hearing three such officers were listed on the Company's
pay roll, the president, who was elected in December 1941, the vice president, who was
appointed in September 1942, and a trustee. None of these officers was actively engaged-
on behalf of the Independent at the time of the hearing.
540612-44-vol. 51--75
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York.State Labor Board in 1939. Whether or not the employees
are bound by the terms of the contract, it is clear that they are
entitled to select a new bargaining representative if they, so desire.a
Under these circumstances, we conclude and find that the contract,
between the Company and the Independent does not constitute a bar
to a determination of representatives pursuant to the petition of
Local 18 filed herein.°
A statement prepared by the Regional Director and introduced into,
evidence at the hearing indicates that Local 18 represents a substantial
number of employees in the unit hereinafter found appropriate.7
We find that a question 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 National Labor Relations Act.
IV. THE APPROPRIATE UNIT
Local 18 contends that all office, clerical, and merchandise employees
at the Company's principal office, excluding executives, managers,
supervisors, confidential secretaries, secretaries to executives and de-
partmental heads, subway and city inspectors, and branch office em-
ployees, constitute an appropriate bargaining unit. The Company
takes no position with respect to the unit proposed by Local 18.
The Company maintains its principal. office in New York City. The
office is divided into four departments, known as the regulating, bill-
ing, ledger, and auditing departments. Each department has a super-
visory head. Employees under them, who constitute the proposed
bargaining unit, are clerical and office workers. Some handle the
clerical work involved in the distribution of certain magazines al-
lotted to them; others are billing clerks, and others handle publishers'
accounts. Approximately 20 percent of these employees are comp-
tometer operators.
The unit proposed by Local 18 includes all employees covered by
both contracts between the Company and the Independent, with the
exception of subway and city inspectors and employees at the branch
offices of the Company.
Subway and city inspectors: Subway inspectors, under a special
supervisor inspect the condition of the newsstands in the city subways,
traveling from station to station. They note the clothing and be-
havior of the salesmen, the display of magazines and papers, the gen-
b Cf. Matter of Hueneme Wharf t Warehouse Company, 39 N. L. R. B. 636.
B Cf.Matter of National Battery Company , 28 N. L. R. B. 826.
The Union submitted 60 application : cards, 52 of which bear apparently genuine signa -
tures of employees on the Company ' s pay roll of April 23, 1943, listing 186 employees in
its proposed unit. Of the cards submitted by Local 18 , 5 bear dates in February 1943,
26 in March , 16 in April, and 5 are undated.
There are approximately 190 employees in the appropriate unit.
INTERBOROUGH NEWS COMPANY 1173
eral condition of the stand, and all matters pertaining to its manage-
ment . They make inventories and report back to their supervisor
on these matters . • Salesmen at these newsstands are employees of
the Company and their status with the Company depends to a con-
siderable degree upon the recommendation of the inspectors con-
cerning them. The duties of city inspectors are similar to those of
subway inspectors, except that salesmen in charge of newsstands in
the city under city inspectors are not employees of the Company, but
independent contractors. The report of city inspectors concerning
them affects their contractural relations with the Company rather
than their status as employees on its pay roll. City salesmen receive,,
in addition to their salaries , commissions on orders which they place.
They are under the direction of a special supervisor. Both city and
subway inspectors are paid at a higher rate than office employees, who
constitute the majority of employees in the proposed bargaining unit,
and their work is performed outside the Company's office. City and
subway inspectors were covered in the first contract between the Com-
pany and the Independent. They were excluded from the second
contract . Since the duties of subway inspectors are clearly super-
visory, since the work interests of both subway and city inspectors are
clearly different from those of the clerical and office employees, we
shall exclude subway and city inspectors from the bargaining unit.
Branch O fee employees: In addition to its main office, the Company
maintains three branch offices at Brooklyn, Jamaica, and Mt. Vernon:
In each of these offices there is a working office manager . At the _
Brooklyn office , there are also two employees who give assistance in
the office, but no regular clerical employees; at the Jamaica office, an
employee who does clerical and stenographic work; and at the Mt.
Vernon office, two employees, an inspector and a second employee who
spends part of his^time in inspection work and part of his time in gen-
eral office work. Branch office employees were covered by the con-
tracts between the Company and the Independent. Local 18 has con-
fined its organization to employees at the Company's principal office.
The record is not clear how many employees in the branch offices would
fall within the general classification of office, clerical, and merchan-
dise employees, to which the proposed bargaining unit is confined.
Since Local 18 does not desire to represent any employees in the
branch offices, and the record is not entirely clear as to their duties
in relation to employees in the main office of the Company, we shall
not.make any determination at this time with relation to a bargain-
ing unit appropriate for employees, in the Company's branch offices:
We shall a tthis time exclude them from the unit herein found_ appro-_
priate for employees in the Company's principal office..
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all office, clerical, and merchandise employees at the
Company's principal office, excluding subway and city inspectors,
branch office employees, executives, managers, supervisors,8 confi-
dential secretaries, and secretaries to executives and departmental
heads, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act.
V. 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 an
election by secret ballot.
Both contracts between the Company and the Independent, noted
in Section III, above, covered "regular" employees of the Company,
employees who had completed 90 days' service with the Company.
All new employees hired by the Company are deemed probationary
employees for the first 90 days of their employment. Approximately
25 percent of all new employees hired do not complete their proba-
tionary period. In view of the large turnover of employees in the
Company's service, Local 18 and the Company agree, and we shall
direct, that eligibility to vote in the election be limited to employees
who have become regular employees under the definition of the former
contracts.
The Independent was duly served-with notice of this proceeding. and
did not appear at the hearing. The record does not disclose that the
Independent is still functioning in any way as a labor organization
representing employees of the Company. For this reason, we shall
not place the name of the Independent upon the ballot, provided, how-
ever, that it may appear thereon if the Independent gives notice to the
Regional Director within five (5) days of the date of the issuance of
the Decision and Direction of Election herein that it desires to par-
ticipate in the election.
Those eligible to vote in the election shall be all employees of the
Company in the unit found appropriate in Section IV, above, who have
completed 90 days' service with the Company and were employed dur-
ing 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.
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 Relations Act,
a Under the term "supervisors ," we shall deem excluded any supervisory employee with
authority to hire, promote , discharge, discipline , or otherwise effect changes in the status
of employees or effectively recommend such action.
INTERBOROUGH NEWS COMPANY 1175
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIREO7Tn that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Interborough News
Company, 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,
-Section 10, of said Rules and Regulations, among all employees of the
Company in the unit found appropriate in Section IV, above, who as of
the date of this Direction have completed 90 days' service with the
Company and were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during 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 employees who have since quit or been discharged for cause,
to determine whether or not they desire to be represented by Book &
Magazine Union, Local 18, U. 0. P. W. A., for the purposes of collec-
tive bargaining.
CHAIRMAN Mm is took no part in the consideration of the above
Decision and Direction of Election.
A