Indianapolis Newspapers Inc.

In the Matter Of INDIANAPOLIS NEWSPAPERS INC., AND/OR STAR PUB- LISHING} COMPANY, EMPLOYER and INDIANAPOLIS NEWSPAPER GUILD, LOCAL 70, AMERICAN NEWSPAPER GUILD, CIO, PETITIONER Case No. 35-RC-163.Decided May 6, 1949 DECISION AND DIRECTION OF ELECTION Upon an amended petition duly filed, a hearing was held on January 5, 20, and 21, 1949, before William A. McGowan, hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed' 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-member panel [Chairman Herzog and Members Houston' and Murdock]. Upon the entire record in this case, the Board finds : 1. The business of the Employer : The Employer moved to dismiss the petition herein on the following grounds: (1) the petition is premature, and no appropriate unit can be found , because of the pending consoli- dation of the advertising departments of the newspapers involved ; (2) the Petitioner has not made a demand for , nor received a refusal of recognition ; (3) no demand for recogni- tion was made with respect to the employees of the Indianapolis News; (4) the Petitioner has made no showing of interest with regard to the employees of the Indianapolis News ; (5) the Petitioner has not been designated by 30 percent or a substantial number of the employees in an appropriate unit as required by the Act and the Board 's Rules and Regu- lations; and ( 6) the Employer was "denied the right of subpoena ." The hearing officer referred this motion to the Board. We find without merit contention (1) for the reasons set forth in paragraph 4 below; contentions (2) and ( 3) in view of the Employer's position at the hearing, Matter of Ad- vance Pattern Company, 80 N. L. R. B. 29; and contentions (4) and ( 5) because we' are administratively satisfied as to the Petitioner 's showing of interest. As to contention (6), the hearing officer granted an oral petition to revoke a subpoena granted to the Employer and directed to the Petitioner's president, calling for production of the cards submitted by the Petitioner as prima facie evidence of interest. Notwithstanding this ruling by the hearing officer, the Petitioner's president, in compliance with the subpoena, produced the cards at the hearing but refused to turn them over to the Employer. The hearing officer upheld the refusal of the witness, but permitted the Employer to make an offer of proof that the cards would show that the Petitioner had not made a prima facie showing of inter- est. Proof in support of the offer was rejected. The hearing officer's rulings upholding the refusal of the witness to release the cards to the Employer and rejecting the proof offered are, affirmed. We have consistently held that a showing of interest is an administrative matter not subject to direct or collateral attack. Matter of Amos Molded Plastics Division of Amos Thompson Corporation, 79 N. L. R. B. 201 . The Employer's motion to dismiss is accordingly denied. 83 N. L. R. B., No. 61. 407 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The First Amended Petition, filed on December 1, 1948, alleged that Star Publishing Company was the employer of the employees involved. The Second Amended Petition, filed on January 6, 1949, described the employer as "Indianapolis Newspapers Inc., and/or Star Publishing Company.". On August 28,1948, Indianapolis Newspapers, Inc., an Indiana cor- poration, herein called INI, was organized for the purpose of combin- ing the Indianapolis Star, published by Star Publishing Company, herein called Star, and the Indianapolis News, published by Indian- apolis News Publishing Company, herein called News. The stock necessary to incorporate was held by Central Newspapers, Inc., the sole owner of the common stock of Star. On December 1, 1948, the stock- holders of News surrendered their stock in exchange for stock in INI, and News merged with INI and ceased to exist. On the same date, Central Newspapers, Inc., acquired additional stock in INI, in return for the transfer to INI, of all the common stock of Star. Since De- cember 1, 1948, INI has actually operated both the Star and the News.2 INI plans a physical consolidation of the two newspapers 8 so that • ultimately all operations, other than the editorial departments, will 1be joint. Star, although it has no employees, remains in existence as the publisher of the Star, and it receives from the operating company all the net proceeds from the publication of that newspaper. It also owns part of the real estate and leases the remainder of the real estate where the Indianapolis Star is now published, and where the consoli- dated- newspapers will be published when the necessary physical changes are completed. Eugene Pulliam, president of Star and of INI, holds the contract with the Associated Press for its service, which is used by the con- solidated newspapers. Mr. and Mrs. Pulliam are two of the three directors of INI. INI admits, and we find, that it is engaged in commerce within the . meaning of the Act. Star denies that it is now engaged in commerce within the meaning of the Act. The Petitioner contends that Star is engaged in commerce by reason of the contractual relationship between Star and INI. In view of our finding, set out hereafter, that Star is not an employer of the employees concerned herein, we find it unnec- "'essary to determine whether or not Star is engaged in commerce within the meaning of the Act. The Petitioner contends that Star and INI are the joint employer of the employees in the appropriate unit. We do not agree with the ' 9 Employees have been carried on the pay roll of INI since January 1 , 1949. Pay roll and other administrative records were not transferred until that date to avoid the neces- sity of making out duplicate pay-roll tax , social security, and other records. It is estimated that the physical consolidation of the two newspapers will be completed not later than June 30, 1949. 4 The corporate charter of Star will expire in 1954. INDIANAPOLIS NEWSPAPERS, INC. 409. Petitioner's contention that Star is a joint employer of the employees involved herein. Despite the degree of integration established by the record, as set forth above, there is no indication that Star, by virtue of such integration, takes an active part in the formulation or applica- tion of the labor policy, or exercises any immediate control over the operation, of INI.5 Under these circumstances, we find that Star is not an employer of the employees involved in this proceeding, and we shall therefore dismiss the petition as to it. 2. The labor organization involved claims to represent employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of 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 Employer contended that the petition was premature, and that no unit determination should be made until the consolidation of the two newspapers is complete. We do not agree with this contention, for the reasons set forth below. At the hearing, the Petitioner contended that the appropriate unit was composed of all employees in the advertising department of the Indianapolis Star, with certain supervisory exclusions. Subsequently, at the close of the hearing, the Petitioner proposed an alternative unit composed of all employees in the advertising department of the In- dianapolis Star and the Indianapolis News, with certain supervisory exclusions. The Employer's position was that if a unit were to be determined at this time, it should consist of all employees in the ad- vertising department of INI, which includes all employees of the na- tional advertising department, local advertising department, classified advertising department, and commercial engraving department, with certain supervisory exclusions. The record shows that, upon completion of the consolidation of the newspapers on June 30, 1949, there will be but one advertising department for the two newspapers, all employees of which will be employed by INI. This department will sell advertising for both newspapers .8 At the time of the hearing, consolidation had pro- 5 In Matter of Public Service Corporation of New Jersey, 77 N. L. It. B. 153, the Board, relying principally upon these considerations , dismissed the complaint with respect to a parent corporation , even though the record showed : that the parent corporation owned or controlled the capital stock of the two subsidiaries involved in that unfair labor practice proceeding ; that its office was maintained on premises shared by its subsidiaries ; that seven of the directors of the parent corporation served in a similar capacity on the single board which acted for the subsidiary corporations ; and that the executive officers of the parent were identical with those of the subsidiaries with the exception of two vice presidents acting exclusively for the subsidiary companies . See also Matter of The Clark Thread Company, 79 N. L. It. B. 542. The credit and auditing departments of the Employer were, at the time of the hearing, performing services for both newspapers by billing national advertising which appeared in both newspapers. 410 DECISIONS' OF NATIONAL, LABOR, RELATIONS BOARD i gressed to the 'point, that there 'was' one national advertising depart- ment, functioning for the two papers in the Star, building; the employees in this department had formerly been employed by the two newspapers. At that time; also, the commercial engraving department in the Star building handled commercial engraving for both news, papers.' The record further shows that _ all the employees in the consolidated advertising department will come from the staffs of the two newspapers, with a few.additions. In view of these circumstances, we find, subject to the' exclusions and to the limitations as to scope of the unit hereinafter discussed, that all employees in the advertis- ing department of INI. constitute .a unit appropriate for collective bargaining. The Petitioner and the Employer were in.dispute with respect to the following categories : Telephone operators,: The Petitioner claims that the main telephone switchboard at the Star is-part of the appropriate unit, because it is in the advertising department and under the supervision of the advertising director. The Petitioner does not seek to include the main telephone switchboard at the News, where it is part of the business office and has no connection with the advertising department. The Employer would exclude the switchboards from any unit found ape propriate. At the time of the hearing', it had not been decided whether, upon completion of the consolidation, the switchboard would be placed under the jurisdiction of the. advertising director or of the business department. We believe that the appropriate unit in this proceeding should follow the administrative division of the Employer's opera- tions8 In the absence of any evidence in the record to support a determination with respect to this category, we shall make no finding at'this time. If the main telephone switchboard is in fact in the ad- vertising department in the consolidated operation, the telephone operators will be included in the unit ; otherwise they will be excluded. Paper markers: Paper markers are employed by the Employer to examine the classified. advertising section of each day's newspapers to eliminate advertisements which have expired or are intended to skip a day, and to indicate which advertisements are to run in the next issue of the paper. This is done both as an advertising function • and also for billing and accounting purposes. On the Star, the paper markers were part of the classified advertising department, whereas on the News they were part of the accounting department. At the time of the hearing, no determination had been made as to the loca- + Neither of the newspapers had operated a commercial engraving department, so that' this new department represents not a consolidation but a feature of the joint operations of the newspapers. This department sells the engraving services of the Employer, and pre- pares the advertising copy of the commercial advertisers for engraving. 1 '8 Matter of Field Enterprises , Inc.,-'73 N. L. R. B. 141. INDIANAPOLIS NEWSPAPERS, INC. 411 tion of the paper markers in- the consolidated newspapers. We shall make no unit determination with respect to the paper markers at this time. If they are in the advertising department in the consolidated operation, they will be included in the unit; otherwise they will be excluded. - - Dispatch room:. The Employer-would exclude, and the Petitioner would include, the employees in the dispatch room. The dispatch room employees on each of the newspapers are under the supervision of the advertising director. They perform a messenger service ex-, elusively for the advertising department, picking up and delivering certain types of advertising copy, and maintain a file of cuts and mats for use of the advertising department. In view of the close rela- tionship between the dispatch room and other divisions of the ad. vertising department, we shall include the employees of the dispatch room within the unit hereinafter found appropriate.9 . Alleged supervisors: The Employer would exclude from the unit as supervisors the seven individuals occupying the classifications dis- cussed below. The Petitioner opposes these exclusions. - Commercial engraving manager: 10 The commercial engraving de- partment is a new operation of the Employer. The department has three employees in addition to the, manager. The present manager was placed in charge of the department when it was first organized, and was given authority to fix the hours of the employees under him and to hire *additional employees as necessary. - At the time of the hearing, he had not yet exercised his authority to hire employees, but a vacancy then existed in his department for which he-was interview- ing applicants. As the commercial engraving manager has author- ity to hire employees, and is therefore a supervisor -within the meaning of the; Act, we shall exclude him from the unit. Assistant supervisors " and night head of the dispatch room:- The assistant supervisors of the dispatch room work in the Star build- ing. One assistant works during the same daytime hours as the dispatch rooms supervisor, whom the parties have agreed to exclude from the unit. This assistant gives proof and copy to the dispatch boys and instructs them as to delivery. He also has charge of the dispatch room during the infrequent absences of the supervisor. The other assistant supervisor works in the late afternoon and evening, and has two boys working under him at that time. The night head of the dispatch room works in the News building, and has substantially the same duties as the assistant supervisor on night duty in the Star building. These men do not hire employees, and, although the record Matter of The Constitution Publishing Company, 81 N. L. R. B. 614. 10 George Binger. - u James Secor and Jack Schneider. '- Robert Woizeski. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shows that they have been given authority to recommend the discharge of employees, it is not apparent that they have ever exercised this- authority nor what weight would be given to such recommendations. We are not convinced, on the record before us, that the assistant super- visors and night head of the dispatch room are supervisors within the meaning of the Act, and we shall therefore include them in the unit hereinafter found appropriate." Assistant phone room supervisor:14 This individual works in the classified advertising department, in what is known as the "phone room," in which classified advertisements are solicited and received by telephone. She works the same hours as the phone room supervisor, whom the parties have agreed to exclude from the unit. Her pri- mary duties are to train the telephone solicitors, to keep production records on employees, and to report on variations in the production of the solicitors. She has no authority to hire or to recommend the hiring of employees. Her first complaint that a solicitor was un- suited for the job would not result in discharge, but rather in an inter- view by the supervisor and retraining of the solicitor by the assistant phone room supervisor. The second complaint would invariably re- sult in discharge. We find that the assistant phone room supervisor is a supervisor within the meaning of the Act, and we shall therefore exclude her from the unit. Assistant retail advertising manager: 16 This man was formerly the classified advertising manager of the Star. About 3 months prior to the hearing, as a step in the consolidation of the newspapers, he was appointed to his present position. Due to the illness of 2 of the 15 salesmen in his department, he has been spending the major part of his time handling their accounts. He is in charge of the department in the absence of the manager, which, under ordinary conditions, would be from 4 to 6 weeks a year. A witness for the Employer testified that the present assistant retail advertising manager "has been an executive on our newspaper with authority to hire and fire since November of 1945." The fact that the assistant advertising manager has tempo- rarily taken over the accounts of the salesmen who are ill does not detract from his status as a supervisor with authority to hire and fire. We find that the assistant retail advertising manager is a supervisor within the meaning of the' Act, and we shall therefore exclude him from the unit. Co-head of the art department.16 The art department at the News building consists of five artists, including the two designated as the "Compare our discussion of the status of the night librarian in Matter of A. S. Abell Company, 81 N. L. R. B. 82. 24 Mrs. F. Walters. 75 W. W. White. 3e G. K. Black. • " ' INDIANAPOLIS NEWSPAPERS, -INC.' 413 co-heads. The Petitioner and the Employer agreed that one of the co-heads, John Huffman, was a supervisor and should be excluded from the unit. The Petitioner contended that the other co-head was not a supervisor and should be included in the unit. Until about 3 years ago, prior to the appointment of these men as co-heads, the department was under the supervision of one man. Each of the co-heads receives the same salary, which is $30 more per week than the next highest paid artist in the department. Their work is substantially the same in that they both do art work, advise the other artists, and work with them in the preparation of advertising lay-outs and art work. The Em- ployer's witness testified that the authority to hire artists has been vested in Huffman because of his special abilities in that field. How- ever, this authority has been exercised only twice in the last 2 years, and no occasion has arisen requiring the discharge of an artist. In 'view of the fact that the co-head of the art department whose inclusion is disputed is a working artist, and in view of the other circumstances set forth above, we find that he is not a supervisor within the meaning of the Act, and we shall therefore include him in the unit. - We find that all the employees in the Employer's advertising depart- ment, including the employees in the national advertising department, local advertising department, classified advertising department, dis- patch room, and commercial engraving department, and including the co-head of the art department,17 and the assistant supervisors is and night head of the dispatch room,19 but excluding part-time employees who work 1 day or less a week '20 the commercial engraving manager '21 the assistant phone room supervisor,22 the assistant retail advertising manager'23 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. ORDER IT Is HEREBY oRDEREn that the petition for investigation and certifica- tion of representatives of employees of Indianapolis Newspapers, Inc., and/or Star Publishing Company, filed by Indianapolis Newspaper Guild, Local 70, American Newspaper Guild, CIO, be, and it hereby is, dismissed insofar as it relates to employees of Star Publishing Company. 17 G. K. Black. 11 James Secor and Jack Schneider. 18 Robert Woizeski. 10 The record shows that the Employer employs classified adtakers who regularly work 4 hours on Saturdays, and two paper markers who work a full day on Sunday, as regular substitutes for the full-time paper markers The Petitioner and the Employer agreed to the exclusion from the unit of these employees and any other part-time employees working 1 day or less a week. 21 George Binger. 21 Mrs. F. Walters. 28 W. W. White. 414 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD DIRECTION OF ELECTION, As part of the investigation to ascertain representatives for the purposes of collective bargaining with Indianapolis Newspapers, Inc., Indianapolis, Indiana, 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 Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regu- lations-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, 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 reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be repre- sented, for purposes of collective bargaining, by Indianapolis News- paper Guild, Local 70, American Newspaper Guild, CIO.