American News Co., Inc.

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AMERICAN NEWS COMPANY, INC. and NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY, PETITIONER. Cases Nos. 2-RC- 4947,2-RC-4949, and 2-RC-4987. January 13,1953 Decision and Direction of Elections Upon separate petitions duly filed, a consolidated hearing was held before Nathan Cohen, 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 these cases, the Board 2 finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. The Petitioner seeks certification as bargaining representative of employees at the Jamaica, Mineola, and Palisades divisions of the Employer's operations, respectively. The Employer and General Warehousemen's Union, Local 852, the Intervenor herein, contend that a recently executed master contract covering employees at these divi- sions constitutes a bar to elections at this time. The Employer is engaged in wholesale distribution of magazines, periodicals, books, and stationery, having its principal office at New York City and divisions or branches in all States of the United States. On July 3, 1952, the Petitioner filed separate petitions in Cases Nos. 2-RC-4947 and 2-RC-4949 for employees at the Employer's Jamaica and Mineola, New York, divisions, respectively.3 On the same day, the Intervenor sent a letter by messenger, notifying the Employer that the employees at the three divisions involved herein had become members of the Intervenor and had chosen it to be their exclusive bargaining representative. This letter contained a copy of a proposed exclusive bargaining contract and requested that the Employer arrange for a conference to discuss the contract within 3 days of the date of the Intervenor's letter. On the same day, the Employer telephoned the Intervenor, and sent a covering letter, arranging for a conference with the Intervenor on July 7, 1952, the next working day. On that day, the Employer and the Intervenor met and signed the contract, pro- posed by the Intervenor, for employees at the three divisions concerned, I Cases Nos. 2-RC-4937, 2-RC-494S, and 2-RC-4067 , consolidated with the instant cases for fearing , were thereafter severed for purposes of decision. 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these lases to a three -member panel [ Chairman Herzog and Members Styles and Peterson]. ® The original petition in Case No . 2-RC-4937, concerning employees at the Employer's Palisades . New Jersey , division, was filed on July 18, 1952 , after the contract urged as a bar had been signed. 102 NLRB No. 7. AMERICAN : NEWS COMPANY, INC. 197 inserting, however, at the demand of the Employer on advice of its attorney,.the following clause : Provided, however, that in the event that the National,Labor Relations Board shall decertify the union as the representative of the bargaining unit covered by this agreement or shall certify an- other union as a representative of said bargaining unit, then in either event this agreement shall thereupon automatically ter- minate. On the same day, the Regional Office mailed notices to the parties that the petitions in Cases Nos. 2-RC-4947 and 2-RC-4949 were pend- ing in the Regional Office and requested a preliminary conference with respect to the issues involved. These notices, however, were not re- ceived by the parties until a day or two later. Thus, the original petitions for employees at the Employer's Jamaica and Mineola divisions were already pending in the Regional Office before the contract urged as a bar was negotiated.4 No demand upon the Employer had been made by the Petitioner before the filing of the petitions, and no formal notice of the petitions issued by the Regional Office reached the Employer before the execution of the contract. : The Employer denies actual notice of the pending petitions. It had not, however, previously recognized any labor organization as exclusive bargaining representative of its employees at any other divisions with- out an election to determine majority status among the employees sought for representation. Under these unusual 'circumstances, it appears that the termination date of the contract was made in the alternative to guard against conflicting interests which might arise, if the Employer's unusual voluntary recognition of the Intervenor and the unprecedented speedy execution of the Intervenor's proposed con- tract by the parties were challenged in appropriate representation proceedings before the otherwise agreed terminal date. As it is evi- dent from the contract provision quoted above that the duration of the contract was made contingent on alternatives, mainly, certification or decertification, the contract had no definite fixed period of duration.5 The contingency contemplated in the contract having occurred, the contract must be held to be no bar to the instant proceeding. 4 The unit alleged appropriate in the original petition in Case No. 2-RC -4947 for Jamaica employees is "promotion employees ." The unit alleged appropriate In . the original petition in Case No . 2-RC-49491 is "promotion department employees , return room employees, make-up employees. and floor men and clerical and office employees ." On the basis of the evidence submitted with respect to the appropriate unit and the agreement thereafter, it appears that the units set forth in the original petitions were not appro- priate for bargaining purposes . Hence, the dates of the original filing are not conclusive as to the contract bar issue . Hera` Jone8 Company, 9+7 NLRB 1070. a See Hiden Warehouse and Forwarding Company, 80 NLRB 1587 . General Electric Company, 99 NLRB 155, is inapposite because in that case the Board found no alternative contingencies expressly stated in the contract provision as they were here, and for that reason, among others, concluded that "the parties had in mind no specific petition , either filed or to be filed with the Board." 250983-vol . 102-53-14 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quetions affecting caixlmerce exist concerningg the representation of employees of the Employer within the meaning of Section 9'(c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees constitute separate units appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All promotion and manual employees at the Em- ployer's Jamaica, Mineola, and Palisades divisions, respectively, in- cluding, but not limited to, return room employees, makeup employees, floormen, and regular part-time employees,' but excluding drivers, cffice and clerical employees, watchmen, guards, and supervisors as defined in the Act, [Text of Direction of Elections omitted from publication in this volume.] MEMBER PETERSON took no part in the consideration of the above De- cision and Direction of Elections. a There are two part-time employees employed at the Jamaica division. They regularly work approximately 5 hours daily. According to our usual practice , we include these employees in the unit for that division regardless of the number of hours of their employ- ment. J. C. Penney Company, Store #1518, 86 NLRB 920. PARMA WATER LIFTER COMPANY and INTERNATIONAL ASSOCIATION :OF MACHINISTS, LOCAL LODGE No. 1491, AFL. Case No. 19-CA-6&8. January 14, 1953 Decision and Order On September 19, 1952, Trial Examiner Howard Myers issued his Intermediate, Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record-in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. . IL 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 [ Members Houston, Styles, and Peterson]. 102 NLRB No. 37.