Associated Press

In the Matter of AssocIATED PRESS and THE AMERICAN NEWSPAPER GUILD Case No. R-536.-Decided February N, 1938 News Collecting and Distributing Agency-Investigation of Representatives: controversy concerning representation of employees : refusal by employer to recognize petitioning union as representative of employees ; controversy concern- ing appropriate unit-Unit Appropriate for Collective Bargaining : national or local unit ; eligibility rules of union ; inclusion of those not eligible to craft unions in-Election Oi dered Mr. John T. McCann, for the Board. Mr. Lloyd Stratton, of New York City, for the Associated Press. Mr. Abraham J. Isserman, of New York City, for the Guild. Mr. Martin Kurasch, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On September 23, 1937, The American Newspaper Guild, herein called the Guild, filed with the Regional Directors for the First Region (Boston, Massachusetts), for the Fourth Region (Philadel- phia, Pennsylvania) and for the Fifth Region (Baltimore, Mary- land) petitions alleging that questions affecting commerce had arisen ,concerning the representation of employees of the Boston, Phila- delphia and Washington offices, respectively, of Associated Press, and requesting investigations and certifications of representatives pur- suant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 30, 1937, the National Labor Relations Board, herein called the Board, acting pursuant to Article II, Section 37 (c) of National Labor Relations Board Rules and Regulations-Series 1, as amended, issued an order consolidating and transferring the proceedings from the First, Fourth, and Fifth Regions to the Second Region. On October 26, 1937, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of said Rules and Regulations, ordered an investigation and authorized the Regional Director for the Second Region to conduct it and to provide for an appropriate hearing upon due notice. '43 44 NATIONAL LABOR RELATIONS BOARD On December 30, 1937, the Board, acting pursuant to Section 9 (c). of the Act and Article III, Section 3 of the Rules and Regulations, con- solidated for purposes of a hearing the matter of investigation and. certification of representatives with the investigation of charges of unfair labor practices that had been filed by the Guild against them Associated Press.' On January 5, 1938, the Board issued an order of severance, severing these two proceedings. On December 23, 1937, the Regional Director issued a notice of hearing, copies of which were duly served upon the Associated Press... and upon the Guild. Pursuant to the notice, a hearing was held on January 5 and 6, 1938, at New York City, before Frank Bloom, the. Trial Examiner duly designated by the Board. The Board and the Guild were represented by counsel, and the Associated Press was represented by Lloyd Stratton, its assistant general manager. All of the parties participated in the hearing. Full opportunity to be heard, to examine and to cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Guild moved to amend its petition so as to claim as the appropriate unit the editorial, clerical, photo, service (utility) employees, and all other employees, excluding chiefs of bureaus, telegraphers, punchers, wire-equipment maintenance em- ployees and wire-photo operators. The motion was granted. The Trial Examiner made several other rulings on motions and on ob- jections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On January 10, 1938, the Board issued an order admitting into evidence as Respondent's Exhibit No. 4 a letter dated January 7,. 1938, from Lloyd Stratton to Nathan Witt, Secretary of the National. Labor Relations Board. On January 18, 1938, a hearing was held at Washington, D. C., before the full Board, for the purpose of oral argument. Upon the entire record in the case, the Board makes the following FINDINGS OF FACT I. THE BUSINESS OF TIIE COMPANY s Associated Press is a nonprofit association of certain persons, who, owning or representing certain newspapers operated for profit, united in a mutual and cooperative association for the collection and interchange of information and intelligence for publication jn the newspapers owned or represented by them. It has at present about I Case No. II-C-1093. 2 The facts in this section are derived front a stipulation entered into by the Board and the Associated Press. DECISIONS AND ORDERS 45 1350 members. Of the 2000 daily newspapers in the United States, approximately 1200, including newspapers in every State, are mem- bers of the Associated Press. Associated Press has members also in many foreign countries. Each member receives at least a minimum news service, and each member supplies to the Associated Press local news gathered by it. The principal office of the Associated Press is in New York City. It has its own representatives in important capitals and cities in the United States and in other parts of the world. The usual method of communication is by "leased wires", or special service by contract with the Western Union Telegraph Company, the American Tele- phone & Telegraph Company, and the Pacific Telephone & Telegraph Company. All forms of communication, including telephone, mes- senger, wireless, and mail, are employed. Associated Press, through itself or its affiliates, also conducts ex- tensive operations in the collection of photographs of persons and events, which it transmits to and from Europe and among its members. When these photographs have lost their news value, they are made available on an exchange of news basis for eventual use in magazines and other publications. Associated Press has over 1700 employees, and an annual pay roll in excess of $3,000,000. The Board has previously taken jurisdiction over the Associated Press, and its jurisdiction has been recognized by the Supreme Court of the United States.' II. THE ORGANIZATION INVOLVED The American Newspaper Guild is a labor organization affiliated with the Committee for Industrial Organization, admitting to its membership the editorial, clerical, photo, service (utility) employees, and all other employees, excluding chiefs of bureaus, telegraphers, punchers, wire-equipment maintenance employees and wire-photo operators, who are employed by the Associated Press. III. THE QUESTION CONCERNING REPRESENTATION The Guild, in letters to the Associated Press dated September 7 and September 15, 1937, asserted that it represented the employees in the Washington, Boston, and Philadelphia offices of the Asso- ciated Press, and asked the Associated Press to bargain with it with respect to the employees in those offices. The Associated Press, claimed that it considered all of its offices as one unit, and would not bargain except on that basis. 8 Associated Press v. National Labor Relations Board, 301 U. S. 103. 46 NATIONAL LABOR RELATIONS BOARD The Guild claims that it represents over 51 per cent of the em- ployees in the Washington office, 80 per cent of the employees in thel Boston office, and almost 100 per cent of the employees in the Phila- delphia office. The number of employees in the units claimed is as follows : Wash- ington, 118 (including six temporary employees employed while Con- gress is in session ) ; Boston, 50 ; and Philadelphia, 26. We find that questions have arisen concerning representation of employees in the Boston, Philadelphia, and Washington offices of the Associated Press. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the questions concerning representation which have arisen, occurring in connection with the operations of the Associated Press described in Section I above, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. TIIE APPROPRIATE UNIT Kent Cooper, the general manager of the Associated Press, asserted that before he took charge of the Associated Press system , there had been superintendents over different sections of the organization. He testified that this led to sectional rivalry and inefficiency, and that it was not until he succeeded in integrating the whole system that it obtained its present efficient mode of operation. At present Cooper keeps in the New York office personnel files and pay-roll records for all of the employees, and keeps close control over the hiring and discharging of the employees of the Associated Press. A man may be taken on by one of the local offices if he submits three satisfactory recommendations. It is then considered that he is em- ployed on a temporary basis. At the end of six months' probation- ary period, the employee so hired must write to Cooper about his work and his aspirations with the Associated Press. Cooper decides whether he wishes to put the man on a permanent basis. The chief of bureau, the employee in each office who is in charge, only has the authority to suspend an employee. The suspended em- ployee then is given the opportunity to write to Cooper and to argue his case. The final decision as to whether the man should be dis- charged is again in Cooper 's hands. Cooper asserts that if the claim of the Guild for three separate units in this case is granted, it will seriously impair the operations of the Associated Press system . Specifically , he testified that if the employees in some of the offices were engaged in collective bar- gaining, while others were not, sectional jealousies would be the DECISIONS AND ORDERS 47 result. Cooper stated that the Guild is at present negotiating on a national basis with the United Press associations , and that the United Press would have a distinct ' competitive advantage if the Associated Press were forced to bargain with each of its individual offices. It is true , however, that because of differences in living costs and because of the fact that the Associated Press, being a membership association , cannot pay to its employees in any one section of the country more than the employees of its various news- paper members are receiving , there is at present no uniformity in salaries among the various offices of the Associated Press. It would seem, therefore , that in view of the existing situation, the conten- tions of the Associated Press as to the sectional rivalries that would result cannot have much force. Cooper testified that, under the present method of operation, he transfers men from office to office , according to their wishes or abili-. ties. He asserts that these transfers would be made difficult if collective bargaining agreements were in force for some of the Associated Press offices and not for others. The number of employees transferred into or away from the staff of the Associated Press in Washington during the 12 months' period in 1937 was 28; in Boston it was two; and in Philadelphia it was seven . Except for the Washington office, therefore , the number of transfers would not seem to be very great. Cooper stated, more- over, that transfers into the Washington office were on a three-year basis. The Associated Press is now engaged in collective bargaining with the employees in its New York office . Cooper stated that if he has to bargain with the employees of'each of his other offices as well, most of his time will be taken up in collective bargaining . It is un- doubtedly true that collective bargaining on a national scale would be the most efficient method of operation as far as the Associated Press is concerned, especially since it is at present bargaining with the Commercial Telegraphers ' Union on the basis of a national unit. Nevertheless, it is important to note that the present petition asks only for the establishment of units as to three offices , and not as to every Associated Press office, and that the Guild asserts that they are will- ing to bargain for these three offices simultaneously . In bargain- ing with respect to any particular office, Cooper must consult the chief of bureau , who is in more intimate contact with the employees in the office. In bargaining on a national basis he would have to consult with all chiefs of bureaus , so that it is hardly realistic to state that it is as easy to bargain on a national basis as it would be to bargain for any particular office. In arguing for the establishment of separate bargaining units in the Boston, Philadelphia and Washington offices, the position of 48 NATIONAL LABOR RELATIONS BOARD the Guild is that the employees in these three offices should not be denied the right to bargain collectively merely because the Guild has as yet been unable to organize the other offices of the Associated Press. In Matter o l R. C. A. Communications, Inc. and American Radio Telegraphists' Association,4 an analogous case, the Board, recognizing the validity of this contention, stated that : In the absence of proof of a present desire on the part of the "live traffic" employees of the Company employed in the metro- politan area to be bracketed in a single unit with all other em- ployees of the Company in the whole communications system, we are of the opinion that the policy of the Act would be best served in this case by not including the employees in the other departmentstand in the other geographical districts of the Com- pany in the appropriate unit. The record does show that the ultimate goal of the A. R. T. A. is to organize all the employees of the Company throughout its whole communications system. The."live traffic" employees of the Company in the metropolitan area should not be denied the benefits of the Act until all the employees of the Company throughout the country are organized (p. 1115). We conclude that employees in the Boston, Philadelphia, and Washington offices of the Associated Press, in the case of each office, constitute a unit appropriate for the purposes of collective bargaining. As to the classes of employees in each office that are to be included, the Guild claims, in its amended petition, that the editorial, clerical, photo, service (utility) employees, and all other employees, exclud- ing chiefs of bureaus, telegraphers,. punchers, wire-equipment main- tenance employees and wire-photo operators constitute the ap- propriate unit. In a case before the Board involving the Associ- ated Press and the Commercial Telegraphers' Union, a stipulation was entered into by the Commercial Telegraphers' Union, the Guild and the Associated Press, which appears to have been in the nature of a settlement of jurisdictional claims between the Guild and the Commercial Telegraphers' Union. This stipulation, which was in- troduced into the record in the instant case, specifies that traffic employees, senior operators, senior mechanics, junior automatic me- chanics, junior automatic punchers and wire-photo attendants were to be included in the appropriate unit claimed by the Commercial Telegraphers' Union. These classes correspond to those excluded from the unit claimed by the Guild in the present case. The Associated Press does not seriously object to the unit claimed by the Guild. For administrative purposes, the Associated Press 4 2 N. L. R. B. 1109, June 30, 1937. DECISIONS AND ORDERS 49 has put its employees on two different pay rolls : the editorial pay roll and the traffic pay roll. The unit claimed by the Guild consists of all the employees on the editorial pay roll and part of the em- ployees on the traffic pay roll. Thus, darkroom employees, who work on news pictures; messengers, who either deliver copy to the local newspapers or act as copy boys and general office boys for the employees in the editorial department, dictation receivers, who re- ^ceive news over the telephone from reporters, and printers' attend- ants, are all listed on the traffic pay roll, and are claimed by the Guild to be a part of the appropriate unit. The Associated Press wishes printers' attendants to be excluded from the unit, because these employees may advance to positions in the traffic department in which they will no longer be eligible to membership in the Guild. Printers' attendants must make minor repairs on machines on which news is received in the various offices, must see that sufficient carbons are inserted so that there will be enough copies for all the editors and for the various local newspapers, and must take care of tearing the copy from the machine. There is a conflict in the testimony as to whether these employees have actual charge of delivering the copy taken from the machine to the editors, or whether that is done by other employees. Since the printers' attendants are not eligible to membership in the Commercial Teleg- raphers' Union, and since the Guild is organized on an industrial basis, it would appear they are properly included in the unit claimed by the Guild. We find that the editorial, clerical, photo, service (utility) em- ployees and all other employees, excluding chiefs of bureaus, teleg- raphers, punchers, wire-equipment maintenance employees, wire-photo operators and photo engravers, employed in the Boston, Philadel- phia, and Washington offices of the Associated Press, in the case .of each office, constitute a unit appropriate for the purposes of collec- tive bargaining and that said units will insure to employees of the Associated Press the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The Guild did not introduce any evidence, other than the testi- mony of Morris Watson, as to its membership in each of the three offices. We find that elections by secret ballot are necessary to deter- mine the proper representatives for collective bargaining and thus resolve the question concerning representation. During the course of the hearing, the parties entered into a stipula- tion whereby the pay roll of January 5, 1938, introduced into evidence as Board's Exhibit No. 5, was to be used in any election ordered in the case. 50 NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Questions affecting commerce, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act, have arisen concerning the representation of employees in each of the following offices of the Associated Press : Boston, Philadelphia and Washington. 2. The editorial, clerical, photo, service (utility) employees and all other employees, excluding chiefs of bureaus, telegraphers, punchers, wire-equipment maintenance employees, wire-photo operators and photo engravers, in the Boston, Philadelphia, and Washington offices of the Associated Press, in the case of each office, constitute a unit appropriate for the purposes of collective bargaining, within the mean- ing of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Associated Press, elections by secret ballot shall be conducted within fifteen (15) days from the date of this Direction : (1) Under the direction and supervision of the Regional Director for the First Region, acting in this matter as agent of the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the editorial, clerical, photo, service (utility) employees and all other employees, excluding chiefs of bureaus, telegraphers, punchers, wire-equipment maintenance em- ployees, wire-photo operators and photo engravers, who are included in the January 5, 1938, pay roll for the Boston office, to determine whether or not they desire to be represented by The American News- paper Guild for the purposes of collective bargaining; (2) Under the direction and supervision of the Regional Director for the Fourth Region, acting in this matter as agent of the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the editorial, clerical, photo, service (utility) employees and all other employees, excluding chiefs of bureaus, telegraphers, punchers, wire-equipment maintenance, employees, wire-photo operators and photo engravers, who are DECISIONS AND ORDERS 51 included in the January 5, 1938, pay roll for the Philadelphia office, to determine whether or not they desire to be represented by The American Newspaper Guild for the purposes of collective bargaining; (3) Under the direction and supervision of the Regional Director for the Fifth Region, acting in this matter as agent of the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the editorial, clerical, photo, service (utility) employees and all other employees, excluding chiefs of bureaus, telegraphers, punchers, wire-equipment maintenance em- ployees, wire-photo operators and photo engravers, who are included in the January 5, 1938, pay roll for the Washington office, to determine whether or not they desire to be represented by The American News- paper Guild' for the purposes of collective bargaining.