Times Publishing Co.

In the Matter of TIMES PUBLISHING COMPANY and NEWSPAPER GUILD OF BOSTON (C. I. 0.) Case No. B-5052.-Decided May 5,1943 Hinkley, Allen, Tillinghast cC Wheeler, by-Messrs. Frederick 117. Tillinghast and Isadore Paisner, of Providence, R. I., for the Company. Messrs. Alwyn J. Lawson and George A. Harris, of Boston, Mass., for the Union. 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 Boston, affiliated with the C. I. 0., herein" called the Union, alleging that a question affecting commerce has arisen concerning the representation of em- ployees of Times Publishing Company, Pawtucket, Rhode Island, herein called the Company, the National Labor Relations Board pro- vided for an appropriate hearing upon due notice before Thomas H. Ramsey, Trial Examiner. Said hearing was held at Providence, Rhode Island, on March 24, 1943. The Company and the Union appeared, participated, and were afforded full opportunity to be heard, to examine and cross examine witnesses, and to introduce evi- dence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Company's motions to dismiss are hereby denied for reasons here- inafter stated. Both the Company and the Union filed briefs which have been duly considered by the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Times Publishing Company, a Rhode Island corporation, has its principal office and place of business at Pawtucket, Rhode Island, 49 N. L. R. B., No 70. 506 TIMES PUBLISHING COMPANY 507- where it is engaged in the publication of a daily' newspaper, The Pawtucket Tihies. In addition to its main office in Pawtucket, Rhode' Island, the Company also operates branch news collection offices in Attleboro, Massachusetts, and Providence, Rhode Island, both of which branch offices together with 'the main office are involved in the present proceeding. Daring the calendar year 1942, the Company sold approximately 11,000,000 newspapers of which 11.7 percent was shipped to points outside the State of Rhode Island. A substantial portion of. the newsprint paper purchased by the Company in 1942 and amounting in value to approximately $80,000, together with an equally. substantial amount of machinery, news, photographs, serial stories, comic strips, and financial news used by the Company, was received from sources outside the State of Rhode Island. The Com- pany subscribes to the Associated Press, the United Press Service, and also buys features from King's Features, from the Chicago Tribune, and from McClure's. We find, contrary to its contention, that the Company is engaged in commerce within the meaning of the National Labor Relations Act.' II. THE ORGANIZATION INVOLVED Newspaper Guild of Boston is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION ,On or about February 8, 1943, the Union notified the Company that it represented a substantial number of its employees in the editorial department-and requested that the Company enter into an agreement for a consent election. The Company declined to enter into such agreement with the Union. A statement of the Regional Director and a statement of the Trial Examiner indicate that the Union represents a substantial number of employees in the unit hereinafter found appropriate.2 ' The Company's contention that the Act is unconstitutional as applied to the Company by reason of an alleged violation of the constitutional guarantees of freedom of speech and freedom of the press , is without merit. See Associated Press v. N. L. R B., 301 U. S. 103. 8 The Regional Director reported that the Union had submitted 21 signed membership cards of which 20 were dated between February 1 and February 15, 1943, and 1 undated: that of the 21 cards, 20 bore the apparently genuine original signatures of persons whose names are on the Company's pay roll as of February 13, 1943, containing a total of 27 names within the appropriate unit. The Trial Examiner stated that a check of the application cards showed that the Union had obtained application cards from employees at both the Providence and Attleboro offices of the Company The contention of the Company that the Union has failed to prove the allegation-in its petition as to the extent of its representation is without merit. The Board has frequently 508 DECISIONS OF NATZ04\TAL LABOR RELATIONS BOARD '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 Union contends that the appropriate unit should consist of all employees in the editorial department of the Company, employed, at the Pawtucket, Attleboro,-and Providence offices, including one Frank Kelley, but excluding the managing editor. The Company takes the position that the appropriate unit should consist of all employees in the editorial department employed only at the Pawtucket office, exclud- ing the managing editor, the city editor, news editor, the editorial writer, and Frank Kelley. The issues between the parties are there- fore (1) whether the branch office editorial employees should be included within the. appropriate unit, and (2) whether certain indi- viduals comprising the city editor, news editor, editorial writer, and Frank Kelley should be included or excluded from the appropriate unit. The Company's branch offices at Attleboro, Massachusetts, and Providence, Rhode Island, have each a separate and for the most part a permanent group of editorial employees who over the news of the territory adjacent to their respective offices. While both branches operate more or less independently of the main office, they are subject to general supervision from the main office in all matters respecting hirilig,'wages, hours, and working conditions. We are of the opinion and find that the branch office employees have substantial interests in common with those of the main office. We shall, accordingly, include them within the appropriate unit.3 There remains .for consideration the-question of individual. exclu- sions. Since both 'the news editor and the city editor present similar considerations, they will be considered together in the present discussion:. - .. . . , !:. I ': , . . The'news editor is an employee who is not only paid a salary of more than $30 a week, buts has supervision over ,All the other editorial em- ployees with the exception of the managing editor. In addition, the recommendations- of the news editor with, respect to the hiring and discliarge,of,einployees are usually, followed by the management of the Company. The city editor airect's the' various reporters in their `activities and 'determines what each should do, on any particular day: The position held 'that a petitioner need not submit evidence of majority representation but that it is sufficient to show a substantial representation See-Matter of Oklahoma Gas & Electric Company and International Brotherhood of Electrical Workers of Oklahoma City, Local B-1141, 42 N. L. R.1 B. 7550,' and cases cited therein See Matter of The Associated Press and,The Newspaper Guild of Detroit,' Local 22, of the American Newspaper Guild, C. I. 0., 42 N. L. R B. 1334. TIMES PUBLISHING COMPANY 509• of city editor normally entitles the holder to a salary of more than $30 a week.4 The recommendations of the city editor with respect to disciplinary action carry great weight and are usually followed by the Company. We are of the opinion and find that both the news editor and the city editor are supervisory employees. We shall, accordingly, exclude them from the appropriate unit.,' The final matters for determination concern the inclusion or exclu- sion of the editorial writer and an individual by the name of Frank Kelley. - • While the editorial writer has supervision over the editorial page, the record does not reveal that he directs or supervises any individual employees. Moreover, there is nothing fn the evidence to indicate that the editorial writer may, without consultation with the manage- ment, determine the policy of the Company. We are of the opinion' that the responsibilities of the editorial writer are not substantially different from those of reporters. We shall, therefore, include the editorial, writer within the appropriate unite With respect to Frank Kelley, the Company contends that he is an independent contractor and should therefore be excluded from the appropriate unit. The evidence shows that while Kelley operates on his own time and from his own office, he receives, nevertheless, a regular weekly salary from the Company. Moreover, though he may at times supply news items to other publishers besides the Company, the record contains no specific evidence of any relations or contracts between Kelley and such other publishers. Under the circumstances, we find that Frank Kelley is an employee of the Company and shall include him within the appropriate unit. We find that all editorial department employees, employed by the Company 'at its offices at Pawtucket, Rhode Island, Providence, Rhode Island, and Attleboro, Massachusetts, including the ' editorial' writer and Frank Kelley, but excluding the managing editor, the news edi- tor, and the city editor, 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 shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- 4 The record shows that the position of city editor is at present temporarily held by an hourly paid employee , pending the recovery of the regular incumbent who by reason of illness has been assigned to other work of an unspecified nature. 5 See Matter of The Telegram Publishing Company and The Salt Lake Tribune Publish- ing Companti and Salt Lake City Newspaper Guild, Local #168, C. 1. 0., 44 N L R. B 461. 9 See Matter of The Telegram Publishing Company and The Salt Lake Tribune Publish- ing Company and Salt Lake City Newspaper Guild, Local #168, C. I. 0., 44 N. L R. B. 461. 510 DE'OISIONS OF NATIONAL LABOR RELATIONS BOARD 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. 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, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Times Publishing Company, Pawtucket, Rhode Island, an election by secret ballot shall be conducted as soon as possible but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director, for the First 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 such 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 any employees who have since quit or been dis- charged for cause, to determine whether or not they desire to be rep- resented by Newspaper Guild of Boston (C. I. 0.), for the purposes of collective bargaining. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election.