Seattle Times Co.

In the Matter Of SEATTLE TIMES COMPANY and NEWSPAPER DRIVERS AND HELPERS UNION LOCAL No. 763, CHARTERED BY IBTCWH OF A., A. F. L. Case No. R-4668.-Decided January 05,1943 Jurisdiction : newspaper publishing industry. Investigation and Certification of Representatives : existence of question: stipu- lation as to; election necessary. Unit Appropriate for Collective Bargaining : proposed unit covering four groups of employees in the circulation department modified to include one group of city district managers and suburban (and county) district managers only; two' groups not included when present collective bargaining agreements covered them and no question concerning representation existed ; fourth group not in- cluded when no substantial showing of representation was made among them. Todd, Holman, Sprague c6 Allen, by Mr. Lucien F. Marion, of Seattle, Wash, for the Company. Mr. Samuel B. Bassett, of Seattle, Wash., for the A. F. L. Mr. Edward E. Henry and Mr. W. B. Sparks, of Seattle, Wash., for the C. I. 0. Mr. Robert E. Tillman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by Newspaper Drivers and Helpers Union Local No. 763, chartered by IBTCWH of A., A. F. L., herein called the A. F. L., alleging that a question affecting commerce had arisen concerning the representation of employees of Seattle Times Company, Seattle, Washington, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Louis S. Penfield, Trial Examiner. Said hearing was held in Seattle, Washington, on December 14 and 15, 1942. The Company, the A. F. L., and Seattle Newspaper Guild Local 82, American News- paper Guild, C. I. 0., herein called the C. I. 0., appeared, participated, and 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 preju- 47 N. L R B., No 2. 8 SEATTLE TIMES COMPANY 9 dicial error and are hereby affirmed. Subsequent to the hearing 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 I. THE BUSINESS OF THE COMPANY Seattle Times Company, a Delaware corporation, maintains its prin- cipal office and place of business in Seattle, Washington, where it is engaged in the business of newspaper publishing and is the owner and publisher of a daily and a Sunday newspaper known respectively as "The Seattle Daily Times" and "The Seattle Sunday Times." The principal raw materials used by the Company in the operation of its business are newsprint, ink, and rotogravure ink. During the year 1941 the Company purchased and used in its plant newsprint, ink, and rotogravure ink, having a total value of $683,000, of which ap- proximately 94 percent was shipped to the plant from points outside the State of Washington. During the same period, the average daily net ,paid circulation of "The Seattle Daily Times" was 117,510 copies; the average net paid circulation of "The Seattle Sunday Times" was 147,842 copies. Approximately 3 percent of the issues of "The Seattle Sunday Times" and approximately,1 percent of the issues of "The Seattle Daily Times" were circulated outside the State of Washington. The total advertising in "The Seattle Daily Times" and "The Seattle Sunday Times" for the year 1941 was 911,344 inches, of which approxi- mately 15 percent was national advertising, including automobile advertising. The Company collects and furnishes to the Associated Press news, photographs, and other intelligence. The' Company is a member of the Associated Press and receives from it-both news and photographs, of which approximately 97 percent originates outside the State of Washington, During the'year 1941 the Company purchased news and other intelligence from the United Press and purchased pho- tographs from Acme News Pictures, Inc., New York City, in the total amount of approximately $31,765, of which 97 percent was purchased and transmitted from points outside the State of Washington. Dur- ing the same- period, the Company purchased features from syndicates located in various parts of the United States, among them being the Associated Press, the Chicago Tribune-New York News Syndicate, Publishers Syndicate, McNaught Syndicate, and the New York Trib- une, Inc. H. THE ORGANIZATIONS INVOLVED ,Newspaper Drivers and Helpers Union Local No. 763 is a labor organization affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, and with 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the American Federation of Labor. It admits to membership em- ployees of the Company. Seattle Newspaper Guild Local 82 is a labor organization' affiliated with -the American Newspaper Guild and with the Congress of Indus- trial Organizations. It admits to membership employees of the- Company., III. THE QUESTION CONCERNING REPRESENTATION The Company and the A. F. L. stipulated that a question concerning representation has arisen in that in December 1940 the A. F. L. re- quested recognition of the Company as the bargaining representative of certain employees of the circulation department; and that a dis- pute arose between the Company and the A. F. L. as to the appropriate, unit in the circulation department. A statement of an attorney of the Board, introduced in evidence at the hearing, indicates that each of the labor organizations represents a substantial number of employees in the unit hereinafter found to be appropriate.'- We find that a question affecting commerce has arisen concerning the representation of Group,III employees of the Company within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. We find further, however, in view 'of the facts set forth in Section IV, infra, that no question concerning represen- tation has arisen as to Groups I, II, and IV, of the Company's employees. 'IV. THE APPROPRIATE UNIT The A. F. L. contends for a single unit of circulation department employees consisting of the following four groups of employees: ,Group I-All motor route carriers;, Group 11-Street circulators, branch men, crew managers, verifiers, mail subscription salesmen, T. F. subscription salesmen, returns men; loaders, and helpers; I - i The Board's Attorney stated that the A. F. L. submitted•to him two A. F. L. contracts with the Com- pany covering respectively the first and second of four groups of employees which the A. F L contends comprise a single appropriate unit, and that the A F L submitted authorization cards purportedly signed by employees in the remaining two groups of employees He stated further that the C. I 9 submitted authorization cards purportedly signed by employees in one of the groups claimed by the A. F L. The report on these cards as compared with the November 8, 1942, pay roll of the Company is summarized in the following table* Groups of employees Number employees in group Number employees designating A F L Number employees designating C I0. Group III 23 8 7 A City district managers________ ______________-___ (17) (7) (7) B Country circulation managers_____ ______________ (6) (1) (0) Group IV----------------------------------------------- 6 0 SEATTLE' TIMES COMPANY 11 Group III-All city district managers and suburban (and country) district managers, and Group IV=(1) city home delivery manager (2) country circulation manager (3) wholesale manager - (4) transportation manager (5) branch manager (6) motor route manager (7) night complaint clerk The. C. I. O. does not oppose a finding by the Board that Groups I and II, together with the suburban (and country) district managers in Group III and all but two employees in Group IV, constitute an appropriate unit. In the case of Group III, however, the C. I. O. contends, without prejudice to its right at a later time to ask for a, larger unit, that the city district managers constitute a separate appropriate unit. _ The position of the Company may be summarized as follows: (1) It contends that the employees in Group I are,independent con- tractors and not employees within the meaning of the Act,' and there- fore should be excluded from any over-all unit; (2) It contends that the employees in Group II are presently recog- nized as an appropriate unit; (3) It has no contention with respect to Group III save to oppose the contention of the C. I. O. that the city district managers com- prise a separate bargaining unit; - (4) It contends that the employees in Group IV, with the possible exception of the night complaint,clerk, should be excluded from any over-all unit as supervisory employees. On December 26, 1940, the A. F. L. and the Company entered into two contracts, one covering the employees in Group I, and the other covering the employees im Group II. Both groups of employees have been under contract continuously since then, the current contracts hav- ing been entered into on March 27, 1942, for a period ending February 29, 1944; and for yearly periods thereafter in the absence of 30 days' notice prior ' to, February 29, 1944, or any yearly termination date thereafter. In view of these contracts, evidencing that the A. F. L. is presently bargaining collectively with the Company on behalf of the employees in Groups I and II, we find that no question concerning representation has arisen respecting the employees in Groups I and II. We shall, therefore, not combine them in an over-all unit. We need not discuss whether or not the employees in Group IV are supervisory employees, since no question concerning representation has arisen respecting them in view of the absence of any showing of sub- stantial representation among the employees in Group IV by either of 12' DECISIONS OF -NATIONAL LABOR RELATIONS BOARD the: labor organizations party to this proceeding. Thus, the remain- ing unit issue concerns only the employees in Group III. Group III consists of 17 city district managers, whom the C. I. 0. contends constitute a separate appropriate unit, and 6 suburban (and country) district managers. The primary function of the city dis- trict managers is to supervise the work of home paper carriers in the city of Seattle. The city district managers generally meet daily at the plant in the morning to receive instructions, advice, and other infor- mation. Some of them may work a short time in an office at the plant. All, of them spend the balance of the day in the district to which they are assigned; where they instruct, direct and aid carriers, check on complaints, select new carriers as needed, and contact the parents, of carriers. Each district has one or more stations to which papers are regularly delivered by Company or contract trucks to be oppor- tioned among the carriers. City district managers make the rounds' of the stations in their district. There are three suburban and three country district managers who operate in territories in the State of Washington, but outside the city of Seattle.2 In their territories they have general supervision over the distribution and sale of the paper. Thus, they supervise not only carriers but newsboys ,and to some extent dealers. Their supervision of suburban carriers is similar to that exercised by city district man- agers over city carriers. They likewise handle complaints and select new dealers. Because they are located outside the city of Seattle they visit the plant less frequently than do city district managers.' The work which the city and the suburban (and country) district managers perform is substantially similar although the responsibilities of the latter are greater in view of the additional duties which they perform. We find, under all the circumstances of this case, that the Company's'city district managers and its suburban (and country) dis- trict' managers constitute a unit appropriate for the,purposes of col- lective bargaining, within the meaning of Section 9 (b) of the Act. . V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which, has arisen be resolved by an election by secret ballot among the. em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion herein, subject to the limitations and additions set forth,in the Direction. ' 2 The three "suburban district managers operate in small areas immediately adjacent to the city of Seattle, whereas the three country district managers cover large outlying sections of the State. e The, suburban district managers may visit the plant once a day, the country district managers perhaps,once every 2 or 3 weeks. SEATTLF1 TIMES COMPANY DIRECTION OF ELECTION 13 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 9, of National Labor -Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECCrED that, as part of the: investigation to ascertain represent- atives for the purposes of collective bargaining with the Seattle Times Company, Seattle, 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, 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 10, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who 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 tempo- rarily laid off, and including employees in the armed forces of the United States who present themselvs in person at the polls, but ex- cluding any who have since quit or been discharged for cause, to determine whether they desire to be represented by Newspaper Drivers & Helpers Local 763, A. F. of L., or by Local 82 of the Seattle News- paper Guild, for the purposes of collective bargaining,4 or by neither. MR. GERARD D. REILLY, dissenting in part : For the reasons stated in my dissenting opinions in Matter of Union Collieries Coal Company, Oakmont, Pennsylvania and Mine Officials' Union o l America (Ind. ),6 and Matter of Godchaux Sugars, Inc. and United Sugar Workers, Local Industrial Union No. 1186, C. I. 0.,' I would find'that the city and the suburban (and country) district managers do not constitute an appropriate unit for collective bargaining. * The names of the unions are set forth here as the A. F. L. and the C I. 0 , respectively, desired its name to appear on the ,ballot. _ 5 41 N L. R. B. 961. _ 0 44 N . L. R. B. 874. In the Matter- of SEATTLE TIMES COMPANY and .NEWSPAPER DRIVERS AND HELPERS UNION LOCAL No. 763, CHARTERED BY IBTCWH OF A., A. F. L. Case No: R-4668-Decided March 1, 1943 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES . On January 25, 1943, the National Labor Relations Board issued a Decision and Direction of Election in the above-entitled proceeding 1 Pursuant to the Direction of Election, an election by secret ballot was conducted on February 8, 1943, under the direction and supervision of the Regional Director for the Nineteenth Region (Seattle, Washing- ton).' On February 8,1943, the Regional Director, acting pursuant to, Article III, Section 10, of National Labor Relations Board Rules and Regulations=S3ries 2, as amended, issued and duly served upon the parties a Report on Ordered Election. 'As to the balloting and its results, the Regional'Director reported as follows : Approximate number of eligible voters---------------------------- 24 Total ballots cast----------------------------------------------- 24 Total ballots challenged----------------------------------------- 0 Total void ballots----------------------------------------------- 0 Total valid votes counted---------------------------------------- 24 Votes cast for Newspaper Drivers and Helpers Union Local No. 763, chartered by IBTCWH of A., A. F. L---------------------------- 10 Votes cast for Seattle Newspaper Guild Local 82, American News- paper Guild, C. I. 0------------------------------------------- '14 Votes cast for neither------------------------------------------- 0 Thereafter, Newspaper Drivers and Helpers Union Local No. 763, chartered by IBTCWH of A., A. F. L., herein called the A. F. L., filed objections to the Report on Ordered Elec'tion'., The objections were as follows : that the A. F. L. believed the Company had instigated a meeting of 16 of the 24 of its employees eligible to vote, which was held in the Company's plant on the _day preceding the election to determine which union should represent them; that at this meeting, C. N. Ander- son, one of the 16 employees, urged his fellow employees to vote for 47 N. L R. B, No. 2. 47 N. L. R. B, No. 2a. 14 SEATTLE TIMES. COMPANY 15 the A. F. L.;, whereupon many of them, believing Anderson to be related by marriage to the Company's general manager, voted for Seattle Newspaper Guild Local 82, American Newspaper 'Guild, C. 1. 0., herein called the C. I. 0., and that at the close of the meeting, the-16 employees conducted a "straw.vote" after agreeing in advance that all would vote for the union winning the "straw vote", and that many, believing that they were bound by this agreement, in the Board election cast their ballots for the C. I. 0., which had won the "straw vote." On February 17, 1943, the Regional Director issued a Report on Objections, finding that- such a meeting as described -above was held, but that it was not called or sponsored by the, Company; that C. N. Anderson was not related to the Company's general manager, and no'one was influenced in his vote by such a belief; and that a "straw vote" was taken but without any agreement that all the employees would vote next day as the majority did in the "straw vote." The. Regional Director therefore recommended that the objections be dis- missed since they raised no substantial or material issues with respect to the election and the conduct thereof. The Board's procedure providing for elections by secret ballot to determine the collective bargaining representative of the employees in an appropriate unit, is designed to enable employees to express a free choice on the subject of collective bargaining in a democratic manner. The taking of a "straw vote" or the holding of a "caucus" prior to a Board-ordered election, and any agreement purporting to ,require employees to vote in the Board election pursuant to the results of the "straw vote" or "caucus," have the effect of supersed- ing the election procedure established by the Board and, thus, the tendency to restrict employees in the full freedom of choice which the Board's procedure was designed to secure. The Board cannot look with favor upon attempts to affect the results of its ordered elec- tions by such pre-election devices, which are intended to commit the choice of representatives of all or some employees 'to the will of a majority or plurality of employees in advance of the procedure estab- lished by the Board for determining the bargaining representative. However, in this case it appears that no agreement was made by the 16 employees that all would cast their ballots in the Board-ordered election as the majority did in the "straw vote," and the election results show that no such agreement was carried out.2 Accordingly, the objections are overruled and we shall certify the C. I. O. 2 Only 8 employees who voted in the Board-ordered election had not attended the meeting of employees or participated in the "straw vote" , yet 10 ballots were cast for the A. F. L. In the Board-ordered election. 16 DECISIONS OF NATIONAL LABOR RELLATLONISi BOARD 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, Sections 9 and 10, of National Labor Relations Board Rules and Regulations-Series g, as amended, IT I6 HEREBY CERTIFIED that Seattle Newspaper Guild Local 82, American Newspaper Guild, C. I. 0., has been designated and selected by a majority of the city district managers and suburban (and coun- try) district managers of Seattle Times Company, Seattle, Washing- ton, as their representative for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, Seattle Newspaper Guild Local 82, American Newspaper Guild, C. I. 0., is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment.