Triangle Publications, Inc.

In the Matter of TRIANGLE PUBLICATIONS, INC. anti- NEwsPAPER Gown OF NEW YORK Case No. R-4320.-Decided November 5, 1942 Jurisdiction : racing information publishing industry. Investigation and Certification of Representatives : existence of question: re- fusal to grant recognition until union certified by the Board ; election necessary. Unit Appropriate for Collective Bargaining : all employees engaged-in publica- tion of racing news, including editorial and commercial departments and maintenance employees (including guards) but excluding mechanical em- ployees covered by existing contracts. Mr. John J. Cuneo, for the Board. Murdoch, Paxson, Kalish & Green,_.,by Mr., George. M. Neil, of Philadelphia, Pa., for the Company. Isserman, Isserman t Kapelsohn, by Mr. Abraham J. Isserman, of Newark, N. J., for the Guild. Mr. A. Sumner Lawrence, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by Newspaper Guild of, New York, herein' called the Guild, alleging that a question affecting commerce had arisen concerning the representation of employees of Triangle. Pub- lications, Inc., New York City, herein called the Company, the Na- -tional Labor Relations Board provided for an appropriate hearing upon due notice before J. J. Fitzpatrick, Trial Examiner. Said hearing was held at New York City, on September 24, and 25, 1942. The Company and the Guild appeared, participated, and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues.- The 'Mailers Union No. 6 and New York Newspaper Printing Pressmen's Union No 2 ap- peared at the hearing but stipulated with the Guild that they claimed no jurisdiction over the employees in the alleged appropriate unit. 45 N. L. R. B., No. 62. 408 TRIANGLE PUBLICATIONS, INC. 409 Trial Examiner's rulings made at the hearing are free from prejudi- cial error and are hereby affirmed. Both the Guild and the Com- pany filed briefs which 'the Board has considered. On October 10, -1942, a stipulation signed by counsel for • the ' Company, the,Guild, and the Board, was docketed with the Board, providing for the cor- rection of certain errors in the transcript of testimony. The Board hereby orders that the stipulation be" made a part of the record and that the transcript be corrected in accordance with the stipulation. Upon the entire .record' in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Triangle Publications, Inc., a Delaware corporation, has its princi- pal place of business in Philadelphia, Pennsylvania, and an office, and place of business in New York City. The only plant here involved is the New York City plant where the Company publishes, prints, and • distributes three publications known as The Morning "Telegraph, Daily Racing Form, and Daily Racing Guide. During the past year, which is a representative period in the Company's business, almost all the raw material used in its New York plant and valued at approxi- mately $135,500 was shipped to it from places outside the State of New York. Of a total annual circulation resulting in sales amounting to $2,500,000, approximately 65 percent of the circulation of each pub- lication is sent through the United States mail or by baggage to sub- scribers or dealers located outside the State of New York. Approxi- mately 65 percent of the revenue from the sales of the publications is derived from subscriptions sold to subscribers and dealers located out- side the State of New York. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. U. THE ORGANIZATION INVOLVED Newspaper Guild of New York is a labor organization affiliated with the Congress of Industrial Organizations, admitting to member- ship employees of the Company. M. THE QUESTION CONCERNING REPRESENTATION On or about July 3, 1942, the Guild notified the Company by letter that it represented a majority of its employees and requested that the Company bargain collectively. The Company did not reply but at a 'subsequent conference questioned the appropriateness of the unit '410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD claimed by the Guild and declined to bargain with the Guild unless certified by the Board. A statement prepared by the Regional Director and introduced in evidence at the hearing indicates that the Guild represents a sub- stantial number of employees in the unit hereinafter found to be appropriate.2 ' 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 Guild contends that the appropriate unit should consist of all employees of the Company employed at the New York City plant engaged in and about the publication of Daily Racing Form, Daily Racing Guide, and The Morning Telegraph, excluding only employees of mechanical departments of the Company, employees who are mem- bers of or eligible to membership in existing craft unions with long bargaining, histories, executives, confidential secretaries to executives, temporary and part time employees. The Company contends that in- stead of a single bargaining unit there should be six separate units covering the employees in question, and urges particularly the sepa- ration of the editorial departments (including composing and return rooms) of The Morning Telegraph and Daily Racing Form, respec- tively, into different units. While the publications other than Daily Racing Guide, which is an adjunct of Daily Racing Form, have separate editorial staffs, which are independent so far as editorial policies are concerned, both editorial departments are located on the same floor of the plant and their labor policies are under the joint direction of the general manager and business manager, who are consulted by the heads of the editorial departments on matters relating to employment. All three publications, which are owned and controlled by the Company, carry similar stories and deal largely with the same subject matter, namely, information and news pertaining to horse„ racing, which news is obtained over a wire service and distributed through the editorial department of The Morning Telegraph to the other two publications. Under the circumstances set forth, we find that the 2 The Regional Director reported that the Guild has submitted 62 signed membership application cards , of which 24 were dated February 1942, 15 dated March 1942 , 1 dated April 1942 , 4 dated May 1942 , 16 dated June 1942, and 2 dated July 1942 ; that of the 62 cards , 59 appeared to bear genuine original signatures and 3 to have printed names ; that of the 59 signatures , 54 appeared to be the names of persons on the Company 's pay roll of August 5, 1942, containing a total of 93 employees in the alleged appropriate unit. The statement of the Regional Director further shows that the Guild submitted cards bearing the names of employees in each of the units claimed by the Company to be appropriate. I TRIANGLE PUBLICATIONS, INC. 411 employees of the editorial departments of the respective publications may properly be merged in a single unit appropriate for the pur- poses of collective bargaining.' There remains for consideration the specific composition of the unit. The Guild would include in its unit, beside the employees of the separate editorial departments, the employees in the following consolidated'- commercial departments which the Company contends should constitute separate units for purposes of collective bargaining : the circulation department, the advertising department, the account- ing and administration department, and the maintenance department (including watchmen and guards). It was admitted by the Company that the trend toward complete consolidation of the three publications as indicated by the consoli- dated departments above-mentioned, might in the future be acceler- ated by increased difficulties arising as a result of the national war effort. It was also admitted by the Company that the various de- partments of ,the three publications, all of which are located in the same building, function together so that the three publications are -distributed on the street according to the time schedules of the Company. . While the collective bargaining history of the Company relates only to certain mechanical departments not presently involved, it appears that collective bargaining, as practiced in the newspaper industry both locally and nationally, has frequently included joint ,bargaining on behalf of the commercial and editorial employees under contracts which are industrial in scope and based on units similar to the one here proposed by the Guild. Under the circum- stances, particularly where no rival claimant has sought separate representation for the commercial departments, we find that the commercial department employees of the three publications may properly be included within the appropriate unit.4 The Guild would include in its unit and the Company would ex- clude one Girard Malmar who, as editor of the Daily Racing Guide, has supervision of the "makeup" of the Guide and has directly re- sponsible to him- one employee in the editorial- department. - The Guild contends that his work is largely editorial and only partly supervisory. The Company, on the other hand, claims that. he See Matter of Clarksburg Publishing Company , et al and Newspaper Guild of Clarksburg, No. 118 of American Newspaper Guild, 25 N. L . R B 456 affirmed , 120 F. ( 2d) 976 (C. C. A. 4). See also Matter of The Telegram Publishing Company and the Salt Lake Tribune Publishing Company and Salt Lake City Newspaper Guild, Local # 168, C. I. 0., 44 N L. R B 461: 4 See Matter of American Newspapers Inc., Illinois Publishing and Printing Company, Evening Publishing Company and Chicago Newspaper Guild Local 71 of the American Newspaper Gsuild, 22 N. L. R B. 899 at 941 ; see also Matter of Globe Newspaper Company and Newspaper Guild of Boston, 15 N. L. R. B. 953. 412 DECISIONS OF NATIONAL 'LABOR RhLATIONS BOARD should be excluded as a supervisory employee. *The record does not disclose the proportion of time which Malmar devotes to duties other than supervisory work. Under,the'circumstances, we find that Malmar is a supervisory employee. We shall exclude`-him from the appropriate unit. The Guild and the Company are agreed and we find that certain employees,, all of whom work in excess of 20 hours a week in the departments referred to,5 may properly be included within the ap- propriate unit. The Guild and the Company are also agreed upon the exclusion of certain other employees e upon the ground that they are either supervisory employees, secretaries to supervisory employees, or temporary employees. Since the employees in question fall within the usual group of exclusions as shown by their official titles 'or des- ignations on the company pay 'roll, they will be excluded from the appropriate unit. We find that all employees of the Company employed at its New York City plant, engaged in and about the publication of Daily Rac- ing Form, Daily Racing Guide, and The Morning Telegraph, in- cluding the employees of the editorial departments (including com- posing and return rooms) and the consolidated circulation; adver- tising, accounting and maintenance (including guards and watch- men) departments, but excluding the employees of the mechanical departments of the Company, employees who are represented by craft unions with which the Company has collective bargaining agree- ments,7 executives, confidential secretaries to executives, temporary and part time employees, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. 8 Specifically Edward F. Fichtelman designated on the pay roll as part time , copy boy ; Philip Feingold and Joseph Sharkey both designated on the pay roll as temporary em- ployees in the maintenance department 6 Specifically Mr Friede , general manager ; D Lyons , editor-in-chief; Lorne O'Donnell, editor of Form; Sol Rosen , assistant editor of Form; William J Kennedy, business manager of both papers and circulation manager ; James Milner, editor of Morning Telegraph ; Ediu and Berger, city editor of Morning Telegraph ; Mr Leighton , advertising director ; Nelson Dunstan, columnist and contact man; Thomas J. Ahearn , chief clerk (Form edi- torial ) ; Louis Iverson, chief bookkeeper and accountant; Robert Schaufer , chief of main- tenance ; Pauline Youron , secretary to Mr. Lyons ; Josephine Abbatte, secretary to Mr. Kennedy ; Margaret Stenderhoff, secretary to Mr. Leighton ; Jo Ann Scott, secretary to Mr Friede ; Patrick Mulcahy, temporary employee (maintenance department ), John Ryan, temporary employee (maintenance department ) ; John Smith , temporary employee (mainte- nance department). ' The record discloses that aside from contracts presently existing or under negotiation with such unions as Typographical Union No. 6, New York Stereotypers Union No. 1 and New, York Newspaper Printing Pressmen 's Union No. 2, all of which represent employees in the mechanical departments , the Company has present contracts with Mailers Union No 6, Newspaper and Mail Deliverers ' Union of New York and Vicinity , and Paper Handlers & Straighteners' Union No. 1 , which unions represent employees in various business departments of the Company. TRIANGLE PUBLICATIONS, INC. V. THE DETERMINATION OF REPRESENTATIVES 413 We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. For the purpose of determining eligibility to vote, the Guild requests the use of the pay roll 'of September 21, 1942, but assigns no reason .forrn this request: The Company urges that a current pay roll be used be- cause of the high rate of turn-over under war conditions.. We find no reason to depart from our customary practice and shall direct that the persons eligible to vote in `the election shall be those in the appro- priate unit who were employed during the pay-roll period imme- diately 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 Re- lations Act, and pursuant to Article III, .Section 9, of National La- bor Relations Board Rules and Regulations-Series 2 as amended, it is hereby, ' DIRECTED that, as part of the investigation to determine represen- tatives' for-the purposes' of collective bargaining with Triangle, Pub- lications, Inc., New York City, 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 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 the employees in the unit found appropriate in Section IV, above, who were employed by the Company during the pay-roll period imme- diately preceding the date of this Direction, including any such em- ployees who did not work during said 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 any who have since quit or been discharged for cause, 'to determine whether or not they desire to be represented by Newspaper Guild of New York, for the purposes of collective bargaining. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election.,