The Constitution Publishing Co.

In the Matter of THE CONSTITUTION PUBLISHING COMPANY, EMPLOYER and AMERICAN FEDERATION OF LABOR, PETITIONER Case No. 10-RC-363.-Decided February 11, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before a hearing offi- cer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Employer's request for oral argument is denied as the record, in our opinion, adequately presents the issues and the positions of the parties. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members.* Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization named below claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Petitioner seeks to represent a unit composed of all employees in the Employer's advertising department, including the employees in the classified advertising, national advertising, local advertising, advertising art, and advertising dispatch and mat sections, but ex- cluding all watchmen, guards, professional employees, confidential secretaries, and supervisors as defined in the Act. The Employer con- tends that the proposed unit is inappropriate, asserting that the em- ployees sought by the Petitioner should be separated into four units, consisting of employees grouped as follows: (1) all employees in *Chairman Herzog and Members Reynolds and Gray. 81 N. L. R. B., No. 106. 614 THE CONSTITUTION PUBLISHING COMPANY 615 the mat and dispatch rooms; (2) all employees in the advertising art department; (3) all outside salesmen in the classified, national, and local advertising departments; and (4) a residual unit including telephone girls, counter girls, stenographers, and all other employees in the classified, national, and local advertising departments not men- tioned above. The Employer likewise would exclude confidential sec- retaries and supervisors from its requested units. At the time of the hearing, there were approximately 60 employees in the advertising department. All these employees work under the general supervision of the Advertising Director. With the exception of the counter girls, all are quartered in adjacent rooms or enclosures located on the mezzanine floor of the Employer's building. They per- form closely interrelated functions in connection with the solicitation and preparation of advertisements that appear in "The Atlanta Con- stitution," a daily newspaper published by the Employer. Make-up men in the dispatch room prepare "dummy" advertisements, mat boys file and issue mats of advertisements, and dispatch boys provide a messenger service for the exclusive use of the advertising department. The clerical employees, office boy, and outside salesmen or solicitors, perform the customary duties of their occupations. Telephone girls receive unsolicited advertisements over the telephone, and counter girls and counter men perform a similar function at the counter. The art department employees prepare lay-out designs for advertise- ments upon the request of the outside salesmen. All employees in the advertising department are paid on a salary basis and, with the exception of outside salesmen, work 5 days each week? The Employer follows a general policy of promotion from within in connection with the filling of vacancies, and all employees, irrespective of classification, have the same general working conditions and benefits. There has been no history of collective bargaining concerning the employees in the advertising department.2 Although we disagree with the Employer's assertion that four separate units are appropriate, there are factors pointing to the ap- propriateness of a separate unit composed only of outside salesmen, such as the higher earnings and slightly different working hours of the latter as compared to those of the other employees in the advertis- ing department. However, the fact that all the employees in the advertising department, including the outside salesmen, work in close i Outside salesmen work a 51/2-day week . They, and the telephone girls, also are paid a monthly bonus that is based upon the amount of advertising space sold 2 At the time of the hearing, all the Employer 's employees, with the exception of those in the advertising, circulation , and promotion departments , and the cashier ' s office, were separately represented either in craft or departmental units for the purposes of collective bargaining. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cooperation and, to a great extent, under the same conditions, and are subject to the same personnel policies, indicate that their grouping into one unit is appropriate. Moreover, the work of the outside sales- men is directly related to that performed in the office by the other advertising department employees, notwithstanding the fact that a substantial portion of the former's work is performed outside the office. In view of the foregoing, we find that all the employees in the advertising department together constitute a single appropriate unit.' The Employer further asserts that its art department employees are professional employees within the meaning of Section 2 (12) of the Act. It contends that, even if the Board should determine that a single unit composed of all the Employer's advertising depart- ment employees may be appropriate, the Board is nevertheless re- quired to direct a self-determination election, as provided in Sec- tion 9 (b) (1) of the Act, among the art department employees in order to determine whether they desire to be included in the same unit with the other advertising department employees. We find insufficient merit in the Employer's contention. As stated above, the art department employees prepare advertising lay-out designs. Preparatory to carrying out their duties, the four employees in this category are given instructions by their supervisor concerning the required designs. Thereafter, they translate the concept of the ad- vertisement into a sketch and perform the necessary lay-out work. Collegiate training is not an essential qualification for the position of artist, although an undisclosed amount of commercial art train- ing is required. Moreover, the record reveals that the Employer once employed a worker who lacked any previous art training. In view of the foregoing, it is clear that the art department employees are not professional employees within the meaning of Section 2 (12) of the Act. We therefore find it unnecessary to direct a self-determina- tion election among these employees. The parties are in disagreement as to the status of the art depart- ment manager, the make-up man and supervisor of the mat and dispatch room, and the supervisor and the assistant supervisor of the dispatch boys, whom the Petitioner would include in the unit, but whom the Employer would exclude as supervisors within the meaning of the Act 4 The record shows that each of these men re- sponsibly directs the work of his subordinates and has the authority effectively to recommend the discipline or discharge of employees 8 Matter of Bethlehems' Globe Publishing Company, 74 N L. R. B. 392. 4 The individuals in these disputed classifications are w F. McFall , Clark Shannon, Roger Moore, and Carl Tippens, respectively. THE CONSTITUTION PUBLISHING COMPANY 617 under his supervision. Accordingly, we find that the art depart- ment manager, the make-up man and supervisor of the mat and dis- patch room, and the supervisor and the assistant supervisor of the dispatch boys are supervisors within the meaning of the Act. We shall therefore exclude them from the unit in accordance with the Employer's request.5 We find that all employees in the Employer's advertising depart- ment, including the employees in the classified advertising, national advertising, local advertising, advertising art, and advertising dis- patch and mat sections, but excluding all watchmen, guards, pro- fessional employees, confidential secretaries," the art department manager, the make-up man and supervisor of the mat and dispatch room, the supervisor and the assistant supervisor of dispatch boys, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. The determination of representatives : The Petitioner contends that a part-time counterman' and a part- time office boy 8 are ineligible to vote, whereas the Employer asserts that they are eligible. The part-time counterman works from 3 to 5 nights each week and the part-time office boy works from 2 to 3 hours each day. As these employees are regular part-time em- ployees, and their interests are similar to those of the full-time employees, we find that they are eligible to vote in the election here- inafter directed.° DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and supervision of the Regional Director for the Tenth Region, and sub- ject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not 5 Matter of Foster Wheeler Corporation, 79 N. L R. B. 1062 ; Matter of United States Gypsum Company, 79 N L R B 536. 6 Leila Vonnerson, Clara Ilarper, and Myrtice Owens are excluded in this category. T G E Strickland. 9 Tom O'Neal. 9 Matter of Chicago Journal of Commerce, Inc., 73 N L R. B. 1213, 1215 ; Matter of The Register d Tribune Company, 73 N. L. R. B. 728, 732; and Matter of Imperial Brass Manu- facturing Company, 72 N L. It. B. 513, 514. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work during said pay-roll period because they were ill or on vaca- tion or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement , to deter- mine whether or not they desire to be represented, for purposes of collective bargaining, by American Federation of Labor.