Joseph R. Osherenko

In the Matter Of JOSEPH R. OsHERENKO AND TIIE C. .iFORNIAN MAGA- ZINE, INC., E`AfPLOYERS and Los ANGELES NEWSPAPER GUILD, C. I. 0., PETITIONER. Case No. 21-B-3437.-Decided October 24,1946 Mr. Irvin $talmaster, of Los Angeles, Calif., for the Employers. Katz, Gallagher d Margolis, by Mr. John W. Porter, of Los Angeles, Calif., for the Petitioner. Mr. Conrad A. Wickham, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Los Angeles, California, on July 18 and 10, 1046, before Charles M. Ryan, h earing 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 1. THE BUSINESS OF THE EMPLOYERS Joseph R. Osherenko, an individual, is engaged in Los Angeles, Cali- fornia, in the production of two trade magazines known as the Cali- fornia Stylist and the California Alen's Stylist. The California Styl- ist is circulated to the ladies' garment trade at the rate of 8,000 copies per month, of which 75 percent goes to points outside the State of California. The California Men's Stylist is circulated bimonthly to the men's clothing trade at the rate of 3,500 copies, of which 80 percent is sent to points outside the State. Substantial quantities of publica- tion materials for the two magazines, and from 30 to 50 percent of the advertising matter, are obtained from sources outside the State. The Californian Magazine, Inc.,' a California corporation with offices in Los Angeles, California, is engaged in the production of a I Sometimes referred to hereinafter as the "Corporation." 71 N. L R. B., No G3. 418 JOSEPH R. OSHERENKO 419 consumer magazine known as The Californian. Of the magazine's monthly circulation of 100,000 copies, 80 percent is sent to points out- side the State of California. Fifty percent of its advertising is obtained from outside the State. We find that Joseph R. Osherenko and The Californian Magazine, Inc., are each engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. TILE APPROPRIATE UNIT The Petitioner seeks a unit of all editorial, art, and photographic employees of the California Stylist, the California Men's Stylist 2 and The Californian, including managing editors, fashion editors, and art directors, but excluding the fashion coordinator. The Employers op- pose this request contending as to the scope that only separate units for each Employer are appropriate, and as to composition that such units should consist of all departments, and should exclude as super- visory not only the fashion coordinator, but also the managing editors of the Men's Stylist and The Californian, and the fashion editors and art directors of the Women's Stylist and The Californian, whom Peti- tioner would include. There is no bargaining history with respect to either Employer. Joseph R. Osherenko, in addition to being the owner of the two stylist magazines, is president of, and holds the controlling interest in, the Corporation, which is devoted to the publication of The Cali- fornian. He is also the editor of all three magazines. The Corpora- tion itself was formed in early 1946. At that time Osherenko ex- panded his facilities somewhat, and the Corporation set up its opera- tions on the same premises with Osherenko, with the result that both 2 Hereinafter referred to respectively as the "women's Stylist" and the "Men's Stylist," and collectively as the "stylist magazines " 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entities have since that time been sharing the same editorial and pub- lication offices where the material for each magazine is written and assembled. In addition, the office staff, bookkeeper, and the secretary and office manager of the stylist publications have been serving the Corporation. The magazines published by Osherenko and the one published by the Corporation are so related in subject matter and are keyed to each other in such a way as to call for very close coordination between both publishers. Thus, the stylist magazines are designed to reach the buy- ers of the men's and women's garment trade, while The Californian is intended to reach the consumers in the retail market. In keeping with their respective purposes of promoting sales to their subscribers of products treated, editorial presentation of the various fashion items is planned to appear first in the trade publications and later in the con- sumer magazine, so as to coincide with their anticipated appearance on the producer and consumer markets. In fact, to insure timely promotion of fashion n7-laterfal as between trade and consumer maga- zines, a fashion coordinator supervises the editorial treatment of the fashion items.3 The assembling and writing of the content material for the three magazines are performed by the employees of the editorial department, who work closely with art and photographic personnel to produce the final items. To achieve the desired fashion results most effectively, editorial employees are assigned specialized fields in the garment industry, such as millinery, leather and riding goods, etc., and are charged with obtaining and preparing material for both the trade and consumer magazines. In addition to their fashion work, they also frequently handle "feature" assignments. Individual assign- ments in both fashion and feature work are generally made by either the fashion, feature or managing editors of the respective magazines to editorial, art, and photographic employees without regard to pre- vailing pay-roll lists. And vacations for all editorial personnel are scheduled by the managing editor of The Californian, with due regard for the needs of all three magazines. With the exception of the advertising department,' the same com- mon coordination of activities for the three publications persists in the other departments of the two Employers. Despite fairly equal distribution of personnel to the respective pay rolls of the stylist and consumer magazines, these designations, except for the top positions, appear to be purely arbitrary rather than indicative of the magazine for which a particular employee is working. There has been no at- 'Although the editorial work fory,the Men's Stylist is performed exclusively by three male employees-the managing editor, art director, and one editorial writer, its activities are similarly coordinated with those of The Californian. Separate sales personnel are employed by each entity because of the different markets catered to by the stylist and consumer publications. Matter of Hudson Knitting Mills, Inc., 56 N. L R. B. 1250. JOSEPH R. OSHERENKO 421 tempt to separate duties or even to keep separate accounts of the work performed by an individual for the respective publications. Although additional editorial personnel was hired by each entity with the incep- tion of The Californian-a new magazine-these individuals have. worked for both Osherenko and the Corporation. The identity of the same personnel with all operations, and the intermingling of their services, is further borne out by the appearance of many of them on the mastheads of all three magazines. Indeed, this close integration of functions makes it difficult to admeasure the amount of work per- formed by them for the respective magazines, or to discern any distinct line of supervision. It is also clear that Osherenko, in his capacity of common editor and publisher, not only exercises complete editorial and financial control over each publication, but asserts ultimate super- vision over all their employees and dominates the labor policies concerning them. In view of the foregoing, and particularly the close coordination between all departments of Osherenko and the Corporation in the pro- duction of the three magazines, we are persuaded that the operations of these two entities are conducted and controlled as a single enter- prise.5 We, therefore, find that Osherenko and the Corporation con- stitute a single employer of the employees in issue within the meaning of Section 2 (2) of the Act. As noted above, there is no history of bargaining affecting these operations, and the employees sought herein work in close proximity to one another, and have closely integrated anad coordinated duties which relate primarily to the editorial phase of the operations of both Osherenko and the Corporation. In addition, the Petitioner seeks to represent only these employees. Under all the circumstances we are persuaded, contrary to the contention of Osherenko and the Cor- poration, that the employees in the editorial, art, and photographic departments of both entities constitute a cohesive group which may function together for collective bargaining purposes.6 There remains for consideration, the issues concerning certain em- ployees alleged to be supervisory. Fashion coordinator: Petitioner would exclude this employee as supervisory. She is Osherenko's assistant and has policy-making authority with respect to the fashion items appearing in the Women's Stylist and The Californian. The fashion editors of these two maga- zines are directly responsible to her. It also appears that she is in a position effectively to recommend changes in the status of other em- 5 Although liar Osherenko testified that he intended to have a completely separate staff for The Californian , this is not presently a fact, and is too speculative a proposition upon which to base a present unit determination. 6 Matter of George W. Prescott Publishing Company, Inc, 64 N. L R B. 1390. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees. We find her to be a supervisory employee within our custom- ary meaning of that term, and shall exclude her from the unit. Managing Editors of The Californian and the Men's Stylist: In ad- dition to his editorial duties, the managing editor of The Californian, although a new employee, is expected in the future to have authority to interview and hire and discharge personnel in the same manner as his predecessor. The managing editor of the Men's Stylist has this authority presently. In view of their supervisory functions, we shall exclude these employees from the unit. Fashion Editors of The Californian and the Womens Stylist: These two employees make assignments to the members of the editorial staff, report on the quality of their work to Osherenko,' and can make effec- tive recommendations with respect to the hiring and discharging of staff personnel. We shall also exclude them from the unit. Art Directors of The Californian and the Women's Stylist: These two employees have authority over the art staff personnel similar to that of the fashion editors with respect to their subordinates. Accord- ingly, we shall also exclude them from the unit as supervisory employees. We find that all employees in the editorial, art, and photographic departments 7 of the Employers at their offices in Los Angeles, Cali- fornia, excluding the fashion coordinator, the managing editors of The Californian and the California Men's Stylist, the fashion editors and art directors of The Californian and the California Stylist, and all or any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Joseph R. Osherenko , and The Californian Magazine , Inc., both of Los Angeles, California , an elec- tion 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 Twenty- first Region, acting in this matter as agent for the National Labor Relations Board and subject to Sections 203.55 and 203.56, of National Labor Relations Board -Rules and Regulations-Series 4, among the employees in the unit found appropriate in Section IV, above, who T This description includes Virginia Scallon, whom Petitioner sought to exclude as a part-time employee . It is clear from the record that Scallon is a full-time editorial 'a rater. JOSEPH R. OSHERENKO 423 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, and including employees in the armed forces of the United States who present themselves in person at the polls, 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, to determine whether or not they desire to be represented by Los Angeles Newspaper Guild, C. I. 0., for the purposes of collective bargaining. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Direction of Election.