The Independent, Inc.

192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, and, if understanding is reached, embody such understanding in a signed agreement. The unfair labor practices found reveal on the part of the Respondent such a fundamental antipathy to the objectives of the Act as to justify an inference that the commission of other unfair labor practices may be anticipated. The preventive purposes of the Act may be frustrated unless the Respondent is re- quired to take some affirmative action to dispel the threat. It will be-recom- mended, therefore, that the Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 348, Bakery and Confectionery Workers International Union of America, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Barbara M. Shallow, Barbara F. Annino, Mary E. Compton, Helen S. Jones, Theresa McCusker, and Marie H. (Vokey) Keith, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. All production employees at the Respondent's Cambridge plant, including the shipping room and truck drivers, but excluding office and clerical employees, maintenance employees, professional employees, guards, watchmen, and all 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. 4. Local 348, Bakery and Confectionery Workers International Union of America, A. F. L., was on November 4, 1950, and at all times since has been, the exclusive representative within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes of collective bargaining. 5. By refusing to bargain collectively with the said Union as the exclusive bargaining representative of the employees in the appropriate unit the Re- spondent has engaged in'and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section'7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] THE INDEPENDENT, INC. and' ST. PETERSBURG CIRCULATION DISTRIBU- TORS LOCAL, INTERNATIONAL PRINTING PRESSMEN AND ASSISTANT'S UNION OF NORTH AMERICA, AFL, PETITIONER. Case No. 10-RC- 1240. September 14,1951 - Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clarence D. Musser, hearing 96 NLRB No. 23. THE INDEPENDENT, INC. 193 officer. 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 Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Reynolds, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain 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 Petitioner seeks to represent employees in the circulation department of the Employer's St. Petersburg, Florida, newspaper publishing plant. The Employer contends that the proposed unit is inappropriate, alleging that circulation department employees are not an homogeneous group. The Employer is engaged in the business of publishing a daily news- paper at St. Petersburg. Circulation of the newspaper is in charge of the manager and assistant manager of the circulation department. Of the 34 other persons in the department, 1 is an office clerk and 1 a typist; 4 are mail room employees; 5 are route captains; 7 are city district managers; 2 are suburban and county district managers; 2 are street sales managers; 6 are newsstand delivery employees; 2 are combination newsstand delivery and mail room employees ; and 3 are solicitor agents. Their work ranges from routine office work to sales jobs. Some work in the department office a regular 8-hour day; others work at irregular times during the day. Some are on a salary; some are on an hourly rate basis; some are on a salary plus commission; and others work on commission only. Distribution of the newspaper to regular city customers at their homes is made by route carriers under the general charge of district managers. Distribution of the newspaper to newsstands and street vendors is in general charge of street sales managers. The mail room foreman, with his crew, is responsible for the distribution of the paper to out-of-town customers by mail. Suburban and county district managers are responsible for the distribution of the newspaper to customers in outlying towns and areas. The circulation department is thus a group of small subdepartments, all integrated under the over- all common charge of the circulation department manager and his assistant. Although employees in the circulation department differ in their abilities and skills, we have frequently found that single department units or multidepartment units of employees doing similar or coordi- 194 DECISIONS OF NATIONAII LABOR RELATIONS BOARD nated work are appropriate for bargaining in the newspaper industry.' The fact that other employees of the Employer ba'rgain' along craft, and not departmental, lines does not justify a denial to the noncraft circulation department employees the right to bargain on- a ,noncraft basis. Because we see no reason to militate against,,the common departmental unit sought by the Petitioner, we find the pro- posed departmental unit appropriate for bargaining purposes. The parties agree that route carriers who deliver papers from house to house and street vendors who sell papers on the city streets are inde- pendent contractors, and should not be included in any bargaining unit. They agree that guards, professional employees, and super- visors should be excluded from the bargaining unit of circulation de- partment employees. They further agree that the clerk in the circu- lation department, mail room employees, and the newsstand delivery employees should be included in the unit. The Petitioner would in- clude, and the Employer would exclude, district managers, street sales managers, solicitor agents, the clerk-typist, and the mail room fore- man. The Petitioner would exclude, and the Employer would in- clude, route captains. City, suburban, and county district managers: Persons in these categories are salaried workers. Each city district manager-there are 7 in all-distributes bundles of newspapers to approximately 25 route carriers in his district. Route carriers deliver the newspapers to customers' homes in the several areas. The parties agree that the route carriers, who work under individual contracts with the Em ployer, are independent contractors. Each district manager is primarily responsible for the distribution of newspapers to customers in his area.' He observes the perform- ance records of route carriers in his district; he aids them as necessary; and he procures new carriers as vacancies occur in their ranks. , He has authority to 'terminate' contracts with route carriers for contract violation. Each district manager normally has a route captain, part-time employee, to aid him in the physical distribution of papers to his route carriers. Route captains are junior high school students be- tween 12 and 15 years of age. The supervision of route carriers is routine under the direction of the circulation manager. As noted above, district managers, as a class, do not supervise the performance of route carriers who work as independent contractors under contracts with the Employer. District Manager Cox, how- ever, has directly under his supervision employee route carriers, whom he has authority to hire and discharge. Unlike route carriers under ' The Dispatch Printing Company, Incorporated, Ohio State Journal Division, 93 NLRB 1282; Press, Incorporated, 91, NLRB 1360; George Putnam, d/b/a Capital Journal, 93 NLRB 1321; Record Publishing Company, 91 NLRB No. 215. THE INDEPENDENT, INC. 195 other district managers, these route carriers do not work under con- tracts with the Employer and are not independent contractors. Two other district managers, working in outlying suburban dis- tricts, are designated as suburban district manager and county district manager, respectively. They are salaried employees; they have no route captains to assist them in distribution of papers to carriers. We are not persuaded that district managers as a group, including city, suburban, and county district managers, are either managerial employees or supervisors within the meaning of the Act, and we shall include them in the bargaining unit 2 We shall, however, exclude District Manager Cox from the unit as a supervisor. We shall include in the unit route carriers serving under Cox who are clearly circula- tion department employees. Street sales managers: The Employer would exclude street sales managers from the unit on the ground that they are supervisors. Like district managers, street sales managers receive a weekly salary. As district managers distribute newspapers to route carriers, street sales managers deliver newspapers to street vendors or corner boys, who the parties agree are independent contractors. Street sales man- agers, however, have no route captains or helpers to assist them. Their "supervision" consists of seeing that the street vendors or corner boys work only at their assigned locations. We find that street sales managers are not supervisors within the meaning of the Act, and shall include them in the unit. Solicitor agents: The Employer would exclude from the unit three solicitor agents on the ground that they have no close community of interest with other employees in the circulation department. Two of the solicitor agents, Hackel and Ludington, work in the Clearwater area. They receive no salary and are subject to no super- vision. They derive their income from the Employer from the dif- ference between the wholesale price and the retail price of newspapers sold on their routes. They solicit and are paid for new subscriptions which they obtain. The third solicitor agent, Joan Hill, lives and works at McDill Field, Tampa, Florida.- She receives as compensa- tion a flat sum of $11 per week, in addition to the usual commission for subscriptions which she obtains and for papers delivered on her route. We agree with the Employer and will exclude solicitor agents from the Unit .3 The clerk-typist: The clerk-typist takes dictation and acts as confi- dential secretary to the head of the circulation department. She keeps circulation records and employees' records. She makes weekly ' charts. She takes care of personnel files and correspondence relating 2 General Beverages Company, 85 NLRB 696; Press Incorporated, supra; Capital Journal supra. s The Dispatch Printing Company, Incorporated , Ohio State Journal Division, supra. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to labor relations matters. We agree with the Employer that the clerk-typist is a confidential employee, and, as such, will exclude her from the unit .4 Route captains: The Petitioner would exclude, and the Employer include, route captains. As indicated above, route captains are junior high school students. They are regular part-time employees earning from $2.50 to $3 per week. They work from 1/2 to 1 hour per day. They assist district managers in making deliveries of papers to route carriers. They perform routine checking work. In an emergency, they may deliver or assist a substitute carrier in making delivery on a route. They do not share in paid vacations afforded full-time em- ployees. They have access to the Employer's hospitalization insurance and credit union program. We shall include route captains in the unit,5 and as regular part-time employees, we shall permit them to vote in the election hereinafter directed. Mail room foreman: The Employer would exclude the mail room foreman as a supervisor. The record discloses that the mail room foreman has authority to hire and discharge the mail room employees who work under his direction. We shall exclude the mail room fore- man as a supervisor from the unit. We find that all employees in the circulation department at the Employer's newspaper publishing plant at St. Petersburg, Florida, including route carriers who are not independent contractors, route captains, city, suburban, and county district managers, and street sales managers; but excluding route carriers and street vendors, who are independent contractors, solicitor agents, guards, confidential and professional employees, the mail room foreman, and other super- visors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 4 Minneapolis-Moline Company , 85,NLRB 597. 5H. B. Church Truck Service Company , 95 NLRB No . 192. Evening News Publishing Company, 93 NLRB 1355. STATIONERS CORPORATION and WAREHOUSE, PROCESSING & DISTRIBU- TION WORKERS UNION LOCAL 26, INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION. Cases Nos. 21-CA-818 and 21- CA-859. September 17, 1951 Decision and Order On February 14, 1951, Trial Examiner J. J. Fitzpatrick issued his Intermediate Report in the above-entitled proceeding, finding that 96 NLRB No. 24