Triangle Publications, Inc.

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.