Essex County News Co., Inc.

In the Matter of ESSEX COUNTY NEWS CO., INC., EMPLOYER and NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. &, VICINITY, PETITIONER Case No. 2-R-7650.-Decided December d9, 1947 Mr. Edwin F. Korkus , of New York City, for the Employer. Mr. Samuel Duker, of New York City , for the Petitioner. Messrs. Emil Oxfeld and Sidney Birnbaum , of Newark , Ni. J., for the Intervenor. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at New York City on July 2 and 14, 1947, before Sidney Reitman, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Essex County News Co., Inc., a New Jersey corporation with its principal office in Newark, New Jersey, is engaged in the purchase and distribution of newspapers, magazines, and periodicals. During the year preceding July 2, 1947, the Employer purchased newspapers, magazines, and periodicals valued in excess of $1,000,000, of which more than 50 percent was shipped to its place of business from points outside the State of New Jersey. We find that the Employer is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED The Petitioner is an unaffiliated labor organization claiming to represent employees of the Employer. 75 N. L. R. B., No. 82. 697 698 DECISIONS OP NATIONAL LABOR RELATIONS BOARD Local No. 7, United Office & Professional Workers of America, herein called the Intervenor, is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent em- ployees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer has declined to recognize the Petitioner as the ex- clusive bargaining representative for certain of its employees because of conflicting claims to representation on the part of the Petitioner and the Intervenor , covering the same group of employees. The Intervenor and the Employer contend that a contract entered into between them on February 24, 1947, constitutes a bar to this proceeding . In support of their contention , both the Employer and the Intervenor take the position that the contract was executed prior to a valid notice by the Petitioner of its claim to representation. The evidence discloses that, following a conference on February 20, 1947, when the Petitioner attempted unsuccessfully to secure recog- nition and to bargain with the Employer, the Petitioner, on February 27, 1947, mailed its petition for certification to the Board's Regional Office where it was received on the following day. However, pending receipt from the Petitioner of supporting- designations requested by the Regional Director , the petition was not docketed until March 4, 1947. Upon the assumption that the latter date was the date upon which the petition was filed, the Employer and the Intervenor urge that the Petitioner's notice of its claim to representation , as disclosed in its earlier conference with the Employer and the subsequent filing of the petition for certification , is insufficient to prevent the February 24 contract between the Employer and the Intervenor from operating as a bar to this proceeding . In support of their position , the Inter- venor and the Employer rely upon the doctrine , announced by the Board in the General Electric X-Ray case,' to the effect that where a petition is filed more than 10 days after the assertion of a bare claim to representation and no extenuating circumstances appear, a valid agreement which is executed in the interval constitutes a bar to an election. In the present instance , the record is clear that the petition was re- ceived by the Board 's Regional Office on February 28, 1947, within 8 days from the Petitioner's last claim to recognition as bargaining representative, a fact which manifests due diligence on the part of the Petitioner. The further fact that the petition was not docketed until March 4, 1947, does not alter the date on which it was filed with the 1 See Matter of General Electric X-Ray Corporation, 67 N. L. R. B 997. ESSEX COUNTY NEWS CO., INC. 699 Board's Regional Office .2 As it appears that the petition was filed within 10 days from the assertion of the Petitioner's claim to repre- sentation made prior to the execution of the contract in question, we find that the Petitioner's notice of its claim to representation was timely with respect to the execution of the above-mentioned contract. Accordingly, we find that the contract does not constitute a bar to the present proceeding. The Employer further contends, relying upon the decision in the Briggs-Indiana case,' that the Petitioner waived its right to represent the return room employees under the terms of a bargaining contract covering other employes, executed on January 2, 1946, and containing among others a provision that these employees "shall not be under the jurisdiction" of the Petitioner. As this contract apparently expired on October 17, 1947,4 we have no occasion to consider the application of the principle enunciated in the above case. Accordingly, we find no merit in the Employer's contention. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 8 (c) (1) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT We find, substantially in accordance with an agreement of the parties, that all return room employees of the Employer, excluding all supervisors, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION 5 As part of the investigation to ascertain representatives for the purposes of collective bargaining with Essex County News Co., Inc., Newark, New Jersey, 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, and subject to Sections 203.61 and 203.62, of the National Labor Relations Board Rules and Regulations- Series 5, among the employees in the unit found appropriate in Section 2 See Matter of Ameacan Radiator and Standard Sanatasy Copporation, 67 N. L. R B. 1135 3 Matter of Brtiggs-Indiana Corporation, 63 N L R B 1270 ' There is no substantial evidence in the record that this contract has been extended ben and its expiration date 5 Having failed to achieve compliance , or to initiate steps for compliance, with the 61mg requirements of Section 9 (f), (g), and (h) of the Act by October 31, 1947, the Intervenor will not be accorded a place on the ballot. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or rein- stated prior to the date of the election, to determine whether or not they desire to be represented by Newspaper and Mail Deliverers' Union of N. Y. & Vicinity, for the purposes of collective bargaining. MEMBERS HOUSTON and GRAY took no part in the consideration of the above Decision and Direction of Election.