Hearst Publications, Inc.

In the Matter of SEATTLE POST-INTELLIGENCER DEPARTMENT OF HEARST PUBLICATIONS, INC. and SEATTLE NEWSPAPER GUILD, LOCAL No. 82 Case No. R465.-Decided November 29, 1938 Newspaper Industry-Employee Statais • term "employee" in Act embiaces all employees in the conventional as well as legal sense except those by express provision excluded ; contract purporting to establish status not controlling, because of public interest ; motor route drivers and outside telephone crew not independent contractors but employees under Act-Investigation of Repiesent- atives: controversy concerning representation of employees : refusal of em- ployer to recognize rival unions as exclusive representative of employees until conflicting claims as to appropriate unit are determined by Board-Units Appro- priate for Collective Bargaining : employees of circulation department ; indus- trial unit for remaining employees of newspaper excluding employees in me- chanical departments ; "creative work" too indefinite and unworkable a guide for excluding from industrial unit specified employees in classified and display advertising ; departmental structure of company improper guide for exclusion under circumstances ; functional interdependence and coherence-Representa- tives: proof of choice : submission of petitions showing membership in union ; eligibility to participate in choice : persons with respect to whom charges of unfair labor practices have been filed-Certification of Representatives : in circu- lation unit, upon proof of majority representation-Stipulation of Labor Or- yanzzations for Cei t?fication not Binding : Board, nevertheless , will proceed to determine issue on evidence taken where matter was in issue at hearing; with- holding of cross-examination upon declaration that labor organization sought election and not certification, no bar to certification where parties stipulate for certification-Election Ordered : in industrial unit. Messrs. Daniel Baker, and Thomas P. Graham, Jr., for the Board. Tanner d Garvin, by Mr. Paul P. Ashley, of Seattle, Wash., for the respondents. Houghton, Cluck & Coughlin, by Mr. Paul Coughlin, of Seattle, Wash., for the Guild. Vanderveer d Bassett, by Mr. Samuel B. Bassett, of Seattle, Wash., for the Drivers Union and for the Advertising Workers. Mr. Karl P. Heideman, of Seattle, Wash., for the Fraternity and for the individual intervenors. Mr. David Rein, of counsel to the Board. 9 N L R . B., No. 119. 1262 DECISIONS AND ORDERS DECISION CERTIFICATION OF REPRESENTATIVES 1263 AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 17, 1937, Seattle Newspaper Guild, Local No. 82,1 herein called the Guild, filed with the Regional Director for the Nineteenth Region (Seattle, Washington) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the Seattle Post-Intelligencer Department, herein called the Newspaper, of Hearst Publications, Inc., a corporation,2 Seattle, Washington, said corporation being herein called the Com- pany, and requesting an investigation and certification of representa- tives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On November 24 the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, or- dered an investigation and authorized the Regional Director to con- duct it-and to provide for an appropriate hearing upon due notice. On February 14, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the Guild, and upon certain labor organizations alleged in the peti- tion to represent employees directly affected by the investigation, namely, Classified and Display Advertising Writers and Workers Union No. 20721, herein called the Advertising Workers ; Stenog- raphers, Typists, Bookkeepers and Assistants Local No. 16304, herein called the Office Workers Union,3 and Joint Council of Teamsters Local No. 28. On February 25, 1938, upon charges filed by the Guild, the Board, by the Regional Director, issued a complaint in the Matter of Wil- liam Randolph Hearst, Hearst Publications, Inc., a corporation, Hearst Consolidated Publications, Inc., a corporation, Hearst Cor- poration, a corporation, American Newspapers, Inc., a corporation, '-The petition as filed set forth the name of the petitioning union as American News- paper Guild , Seattle Chapter The petition was amended at the hearing to change the designation of the petitioner to Seattle Newspaper Guild , Local No 82. 2 Seattle Post-Intelligencer Department , generally referred to in the record as Seattle Post-Intelligencer, or Post-Intelligencer , is a department of Hearst Publications , Inc., a corporation . At times during the proceeding , and for the purposes thereof, reference has been made to Hearst Publications , Inc., by the name of Seattle Post-Intelligencer , or Post- Intelligencer. Hearst Publications , Inc , is also one of the respondents in Case No. C-795, lieiein mentioned 3 During the course of the hearing this organization announced that it had changed its name to Office Workers Union, Local No 16304. 1264 NATIONAL LABOR RELATIONS BOARD and King Features Syndicate, Inc., a corporation 4 and Seattle Newspaper Guild, Local No. 81,' Case No. C-795, .alleging that Wil- liam Randolph Hearst, Hearst Publications, Inc., a corporation, Hearst Consolidated Publications, Inc., a corporation, Hearst Cor- poration, a corporation, American Newspapers, Inc., a corporation, and King Features Syndicate, Inc., a corporation, respondents named in said complaint, had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. A copy of the com- plaint, accompanied by a notice of hearing, was served upon each of said respondents, upon the Guild, and at the office of the Newspaper. On February 23, 1938, the Board, acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of the Rules and Regulations, ordered that the proceeding herein upon the petition be consolidated with the proceeding in Case No. C-795 for the pur- pose of hearing. On March 5, 1938, the Regional Director issued an order in each of the proceedings postponing the hearing and set- ting a date and place for the hearing in the two cases. A copy of such order was duly served upon all parties. On or about March 3 the Company, as a respondent, filed an answer in Case No. C-795 and on March 9 all of said respondents in said proceeding filed a joint answer to said complaint and a motion to dismiss as to some of them. The motion thereafter was denied at the hearing by the Trial Examiner. Pursuant to the order postponing the hearing, a hearing was held in the consolidated proceeding from March 10 to April 1, 1938, in Seattle, Washington, before Charles A. Wood, the Trial Examiner duly designated by the Board. At the hearing motions to intervene were made respectively on behalf of the Advertising Workers, the Office Workers Union, and Newspaper Drivers and Helpers Local No. 763, herein called the Drivers Union. Likewise, a motion to intervene was made jointly on behalf of The Professional Adver- tising Fraternity, herein called the Fraternity, and the following named persons : W. H. Mclnerny, Fred Marshall, Paul J. Immel, Muriel B. Wells,e I. J. Hentschell, Carl Hege, Fred W. Strauss, Ar- thur Wichman, Arthur G. Lomax, Mary Ramsey Reith, Kathleen McClure, N. T. MacNeil, J. J. Atkinson, John Taliaferro, Joseph B. Winston, Warren E. Crane, and Roy Sparke, jointly referred to 4 The complaint as originally issued and entitled, also named International News Photos, Inc., as a party respondent. At the hearing the complaint was amended to strike there. from International News Photos, Inc., upon discovery that there was no such corporation. 5 The complaint as originally issued set forth the name of the union as the American Newspaper Guild, Seattle Chapter The complaint was amended at the hearing to change the name to Seattle Newspaper Guild, Local No. 82. Her name appears in the record sometimes as Burnham and sometimes as Wells and occasionally, mistakenly, as two distinct individuals. DECISIONS AND ORDERS 1265 herein as the individual intervenors. These motions were allowed by the Trial Examiner. Thereafter the Office Workers Union re- quested permission to withdraw generally from the hearing and proceeding and leave to do so was granted it by the Trial Examiner. The Board, the Company, the Guild, the Advertising Workers, the Drivers Union, the Fraternity, the individual intervenors, and the re- spondents in Case No. C-795 were represented by counsel and par- ticipated in the hearing. Full opportunity to be heard, to examine, and cross examine witnesses, and to introduce evidence relevant to the issues determined and disposed of by this Decision, Certification of Representatives, and Direction of Election was afforded all parties. During the course of the hearing the Trial Examiner made various rulings. In so far as these. rulings relate to said issues the Board finds that no prejudicial errors were committeed, and the rulings are hereby affirmed. On August 23 the Guild and the Drivers Union, by and through their respective counsel, entered into a written stipulation with re- spect to certain of the issues involved in the proceeding herein upon the petition, said stipulation being more particularly set forth here- inafter. Copies of said stipulation were lodged with the Board on August 31 together with a written consent of the Company, the Fra- ternity, the individual intervenors, and the Advertising Workers to the introduction of said stipulation into the record. The Board hereby directs the filing instanter of said stipulation as part of the record herein. On September 15, 1938, the Board issued, an order directing the issuance of proposed findings of fact, proposed con- clusions of law, and proposed order in Case No. C-795. On October 18, 1938, the Board in accordance with Article II, Section 37 (b), and Article III, Section 10 (c) (2), of the Rules and Regulations, issued an order severing the two cases which had been consolidated for the purpose of hearing. On November 22, 1938, there was lodged with the Board a further stipulation entered into by all the parties concerning the number of traffic and return clerks of the Newspaper- The Board hereby orders the filing instanter of said stipulation. The present case has now come on before the Board upon the peti- tion and the record, including said stipulations, but only the issues presented by the petition are disposed of in this Decision, Certifica- tion of Representatives, and Direction of Election. Nothing herein shall be taken to affect the proceeding before the Board in Case No. C-795. 7A subsequent motion by the Frateinity and the individual intervenors for leave to intervene separately was granted, but thereafter when it appeared that the interests of both intervenors were identical, the leave for separate intervention was withdrawn. 1266 NATIONAL LABOR IiELATIO^S 1 GAUD Upon the record in the case , the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Hearst Publications, Inc. is a California corporation with its prin- cipal office and place of business at San Francisco, California. It is engaged in the publication of various daily and Sunday newspapers in San Francisco, Oakland, and Los Angeles, California, and the Seattle Post-Intelligencer in Seattle, Washington. In Matter of TVilliam Randolph Hearst, Hearst Publications, Inc., Hearst Consolidated Publications, Inc., Hearst Corporation, Ameri- can Newspapers, Inc., and King Features Syndicate, Inc. and American Newspaper Guild, Seattle Chapter,5 decided by this Board on January 13, 1937, we considered the °nature of the business and operations of the Company, and of the Newspaper, and the relation- ship which such business and operations bore to the so-called Hearst organization.9 Since the hearing in that case no change of substance has occurred in the business or operations of the Company as regards the Newspaper. The record shows that the findings of fact there made in that connection are an accurate statement of the facts as they now exist. We accordingly find, as we there found : The Seattle Post-Intelligencer is a daily and Sunday newspaper. It is distributed generally throughout the States of Washington, Idaho, Montana, Oregon, and other States in the United States and in Alaska and British Columbia. It has an average daily circulation of approximately 104,259 and a Sunday circulation of approximately 221,801 copies. Special editions of the newspaper, including a "pre- date" Sunday edition, are prepared for distribution outside of the State of Washington, and are delivered to their destinations by train, boat, and truck. Trips are made daily by truck under contract with the Newspaper from Seattle, Washington, to Vancouver, British Columbia, carrying approximately 1,000 copies of the daily editions and between 4,000 and 5,000 copies of the Sunday editions, for dis- tribution through dealers and through the mails in British Columbia. Raw materials and machinery used in the publication of the news- paper, including ink, linotype machines, and press parts are ob- tained outside of the State of Washington and are delivered to the Newspaper in Seattle by train, boat, and truck. 8 Case No C-136, 2 N L. R. B. 530. The Hearst organization is Nation-wide in its scope and activities, including in its structure the respondents in Case No C-795. The Hearst organization is more fully described in Matter of William Randolph Hearst, et at. and American Newspaper Guild, Seattle Chapter, 2 N. L. R. B. 530. DECISIONS AND OxDERRS 1267 The Newspaper is a member of the Associated Press10 and uses daily between 100,000 and 150,000 words obtained from that source. It is also supplied with news from other States and foreign countries by International News Service', and Universal Service 1- and uses daily about 40,000 words obtained from each of these sources. In addition to the news thus received, the Newspaper is supplied by International News Service and Universal Service with feature articles and with editorials. The news and other materials thus received are taken by copy boys from a teletype machine, are scanned by the telegraph editor, and are then submitted to the managing editor for publication. Advertising matter for both the daily and Sunday editions of the Seattle Post-Intelligencer is solicited and obtained by Hearst International Advertising Service, a Hearst subsidiary representing all of the Hearst newspapers, with offices in New York and Rochester, New York; Chicago, Illinois; Detroit, Michigan; Cleveland, Ohio; Boston. Massachusetts; Philadelphia, Pennsylvania; Atlanta, Geor- gia; San Francisco and Los Angeles, California; and Seattle, Washington. In the, publication of the Seattle Post-Intelligencer newspaper a great deal of material is used in common with other newspapers of the so-called Hearst organization. Thus, in the daily editions, it is supplied by King Features Syndicate, Inc.,,- with comic strips, car- toons, puzzles, recipes, patterns, and special articles. The Sunday editions include weekly supplements, among others The American Weekly, which is published in San Francisco and Los Angeles, Cali- fornia,-and sent to Seattle, Washington, to be included in the Sunday editions of the Seattle Post-Intelligencer. The editorial employees and photographers of the Newspaper collect and prepare news dispatches and pictures for publication in Seattle for the purpose of sale and distribution elsewhere. While much of the material so collected is local in character, reporters and photographers frequently cover assignments outside of the State of Washington. Copies of the news dispatches prepared by the editorial staff :ire supplied to The Associated Press, which selects items of general interest and importance for transmission and sale to its -members throughout the world. Occasionally, stories of special in- terest are also supplied to International News Service and Universal i'For a description of the Nation-wide business of the Associated Piess see Mattet of The i,',oeated Ptess and 4merican Newspaper"Guild, 1 N. L R B 788, order enforced in National Labor Relations hoard v 4ssociated Press. 301 U S 103 "For description of the business of International News Service see Hatter of William Rondalph Hearst, et at. and Arnettean Newspaper Guild. Seattle Chapter, 2 N L R B 530 U Pm it desci iption of the business of Universal Sees ice see Matter of William Randolph Heat.st , et at and American Newspaper Guild. Seattle Chapter, 2 N L R B 330 i9i"or a description of Wing Features Syndicate . Inc, see Mutter of lydltani Randolph Heart, et at and American Newspaper Guild, Seattle Chapter , 2 N L. R B 530 134008-30-vol ix-81 1268 NATIONAL LABOR RELATIONS BOABD Service for distribution to their members . In addition, the photog- raphers of the Newspaper take and prepare photographs on behalf of International News Photos, which are supplied ' to subscribers throughout the United States. At the hearing, the Company, by its counsel, 'conceded that the Company is engaged in, and its operations occur in, interstate com- merce, and that the employees ' of the Newspaper are engaged in interstate commerce. We find that the business and operations of the Company, and of the Newspaper, constitute a continuous flow' of trade , traffic, and commerce among the several States. II. THE ORGANIZATIONS INVOLVED Seattle Newspaper Guild, Local No. 82, is a labor organization affiliated with the American Newspaper Guild, which in turn is affil- iirted with the Committee far Industrial Organization . 'Prior to the fourth annual convention of the American Newspaper Guild held in St. Louis, Missouri, from June 7 to 11 , 1937, membership in affiliated chapters or locals of the American Newspaper Guild was limited to persons employed in the editorial departments of news publications or other agencies engaged in'the gathering and dissemi- nation of news. However, as a result of action taken at this conven- tion the jurisdiction of affiliated chapters or locals of the American Newspaper Guild was enlarged, and in accordance therewith, the Guild now admits to membership all persons , except executives, em- ployed in the editorial, circulation, promotion , classified advertising, display advertising, and purchasing departments and the business office of the Newspaper. Newspaper Drivers and Helpers, Local No. 763, is a labor organiza- tion affiliated with the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America , which, in turn, is affiliated with'the American Federation of Labor. Newspaper Driv- ers and Helpers, Local No. ' 763, admits to membership employees in the circulation department, excluding clerical office employees. of the Newspaper. Classified and Display Advertising Writers and Workers Union No. 20721, is a labor organization affiliated with the American Fed- eration of Labor, admitting to membership employees iii' the classi- fied and display advertising departments of the Newspaper. The Professional Advertising Fraternity is an incorporated associa- tion admitting to membership persons professionally engaged in the City of Seattle, ' Washington , '"in the creative processes ' of adver- tising in both. production and administrative capacities." ' d DECISIONS i ND OIWEItS III. THE QUESTION CONCERNING REPRESENTATION 1269 The Guild has represented for some time employees of the editorial department of the Newspaper in their negotiations with the Com- pany concerning wages, hours, and other conditions of employment. In May 1937 it commenced organizational activities among employees in the other departments of the Newspaper, except the mechanical departments. Since employees in the editorial department, only, were then eligible to membership in the Guild, employees of these other departments were organized as separate groups, affiliated, however, with the Guild and each other through a so-called joint council. After the convention of the American Newspaper Guild in June 1937 the jurisdiction of the Guild was extended along indus- trial lines and the members of the affiliated groups were admitted to membership in the Guild itself. Between May and August 1937 the Drivers Union began to enlist members among employees in the circulation department of the 'Com- pany, and the Advertising Workers did likewise in the, advertising departments. Each succeeded in securing a substantial number of members. In August 1937 the Guild requested the Company to bargain col- lectively with it as the exclusive representative of employees in the editorial, circulation, advertising, and allied departments, and the business office, of the Newspaper. About the same time the Drivers Union requested the Company to recognize it as the exclusive bargain- ing representative of certain employees chiefly in the circulation department, and the Advertising Workers made a similar request with respect to employees in the classified advertising and display advertising departments. The Company took the position in regard to these requests that it would recognize the Guild as the exclusive iepresentative of employees in the editorial department, but, would grant none of the three organizations recognition as exclusive repre- sentative of employees in any other department. It stated that any grant of such recognition must await a determination by 'the Board as to which unit or units of employees involved in the jurisdictional claims of the rival organizations was' or were appropriate for pur- poses of collective bargaining. The Company also expressed doubt as to whether the Guild represented a majority of the employees in the. bargaining unit which it claimed to be appropriate. ''e timid that a question has arisen concerning representation of the employees of the Company. ' 1270 NATIONAL L ABOR l:ia.AT1ONS BOARD IV. THE EFFECT OF TILE QUESTION CONCERNING REPRESENTATION UPON COMMFRCE We find that the question concerih ug representation which has arisen, occurring in connection with the operations of the Company and the Newspaper, described in Section I above, has a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT A. The circulation unit The Drivers Union contends that employees in the circulation department, excluding clerical office workers, together with certain persons known as motor route drivers, who are engaged in circulation work,14 constitute by themselves a unit appropriate for collective bar- gaining purposes; that the interests of these employees will best be, advanced if bargaining with the Company is conducted in behalf of their group alone . In support of this contention it is argued that these employees have no common interests of substance with em- ployees of other departments; that the services which they render are performed away from the plant premises and without any con- tact with other employees; that the general nature of their employ- ment distinguishes them materially in work function from the other employees. On the other hand the Guild contended at the hearing that a unit consisting only of circulation department employees and motor route drivers would not be appropriate, that these employees were part of a larger unit comprising all employees of the Newspaper except those in the mechanical departments. It argued that the Newspaper is a highly integrated enterprise with a close relationship existing between its various departments; that this had resulted in marked functional coherence and interdependence in the work of all em- ployees including those in circulation work; and that in this cir- cumstance an industrial unit would best insure to all employees the full benefit of collective bargaining. While this argument, as such, would afford no ground for differentiating between employees in the mechanical departments and those in other work of the Newspaper, the Guild took the position that employees in the mechanical depart- ments should be excluded from the unit it claimed appropriate for the reason that the work of these employees fell within well-defined crafts, that these employees had been organized for some time in 14 Whether motor route driers are employees under the Act is discussed below DECISIONS AND ORDERS 1271 labor organizations, that they have had a considerable history of independent collective bargaining with the Company, and that they already have their industrial relations covered by outstanding agree- ments with the Company relating to wages, hours, and other working conditions." The Advertising Workers, the Fraternity, and the individual inter- venors have no interest and take no stand concerning the appropriate- ness of a unit consisting of employees in the circulation department and motor route drivers. The Company likewise is indifferent and assumes the position of a general disinterest with respect to all issues involved in this proceeding. After the close of the hearing the Guild and the Drivers Union entered into the stipulation heretofore mentioned. By this stipula- tion the Guild has acquiesced substantially in the above contention of the Drivers Union and agrees that certain of the classifications of employees in the, circulation department described-in the stipulation constitute a separate appropriate bargaining unit. In this regard the stipulation provides, and the Guild and the Drivers Union agreed : The following classified workers in the circulation department of the Seattle Post Intelligencer constitute an appropriate unit for the purpose of collective bargaining : All persons engaged in the bulk transportation or delivery, and all persons engaged in the single copy delivery, of the Post Intelligencer, by automotive equipment, including the following classifications of employees of the Seattle-Post Intelligencer * * *: Home Edition District Men Helpers-Seattle (this refers to helpers only, and not to the Home Edition District Men- Seattle). District Man-Tacoma. Branchmen. Branchmen's Helpers. Street Circulators-Seattle. Street Circulators-Portland. Roadmen. 1c This has been substantially the position adopted by the American Newspaper Guild in the majority of the cases which have come before the Board See Mattel of Daily Mirror, Ino and Newspaper Guild of New York, 5 N L. B B. 362; Matter of Boston Daily Record ( New England Newspaper Publishing Company ) and Newspaper Guild of Boston (American Newspaper Guild) , Matter of Boston Evening American and Boston Sunday Advertiser (New England Publishing Company ) and Newspaper Guild of Boston ( American Newspaper Guild ) ; Matter of New England Newspaper Publishing Company and American Federation of Newspaper Writers, Reporters .b Editorial Workers, Federal Local No . 21132, 8 N L R B 694 , Matter of Times Publishinq Company and The Newspaper Guild of Detroit, 8 N L R. B 1170 1272 NATIONAL LABOR RELATIONS BOARD Assistants to Circulation Manager: Branch Manager. Canvasser Manager. Country and Suburban circulator (these three classifications only). Traffic Clerks. Return Clerks.} Canvassers-City. Canvassers-Outside City. Motor Route Drivers (suburban or country runners (3) sub- There are considerations which tend to support the view that em- ployees within the above classifications set forth in the stipulation constitute a distinct appropriate bargaining unit. These employees work chiefly outside the plant of the Newspaper in one or more of the various operations connected with the handling and distribution of newspapers to purchasers, the making of collections from sub- scribers, and the securing of new subscriptions.16 In consequence of the outside work situs their employment involves conditions different in many -respects from the working conditions of other employees. There also is little actual contact between these employees engaged in circulation work and the other employees of the Newspaper. In several cases recently before the Board where persons of like employ- ment were organized as a separate craft and dealt with the employer on such basis we recognized them as an appropriate bargaining unit.- In view of these considerations we will resolve any question which here may exist concerning the appropriateness of the unit considered, in accordance with the stipulation of the only labor or- ganizations which have enlisted members among the employees within it. There remains, however, one matter for determination. At the hearing a question was raised as to whether or not the motor route drivers, otherwise called suburban or country runners, who perform services in connection with the circulation of the Com- pany's newspapers, are employees, within the meaning of the Act. The contention was made that these persons were not employees but independent contractors, and considerable evidence upon that issue was introduced into the record. The stipulation of the Guild and Drivers Union above referred to entered into subsequent to the hear- ing, included them in the circulation unit. However, the status of these persons as employees having been called into question the issue 16 While some of the employees covered by stipulation , as the assistants to the Circula- tion Manager, are not employed outside, their work is so intimately associated with that of the other employees that their inclusion in the unit is not illogical. 11 See Matter of Tames Publishing Company and The Newspaper Guild of Detroit, 8 N. L R. B. 1170; Matter of Boston Daily Record, etc and Newspaper Guild of Boston, eta, et seq , 8 N. L. R. B. 694. 1 DECISIONS AND ORDERS 1273 was not one to be disposed of by stipulation of such parties. Never- theless, since these persons were either heard on the matter at the heating through an organization of which they were members or were- frilly represented there by parties similarly situated the issue may be decided upon the evidence taken. The motor route drivers deliver newspapers by automobile to sub- scribers in suburban and rural areas surrounding Seattle, make col- lections of the monthly subscription price from such subscribers, and devote time and effort toward the securing of new subscribers. Each driver is assigned a specific route by the Company extending from 60 to 110 miles and is furnished with a list of the names of sub- scribers residing along the route which he is to serve. Any new subscription received by the Company not handled directly is trans- mitted to the driver who travels the route where the new subscriber resides. In making deliveries the drivers insert the newspapers in "motor route boxes" located outside the residence of each subscriber and furnished by the Company for such purposes. Collections are made by the drivers 'upon written receipts which they issue to sub- scribers, bearing the name of the Newspaper and taken from a receipt book given them by the Company for such use. The drivers keep the current lists 'of subscribers which, together with other similar records, are the property of the Company. Once each month all drivers report to the plant of the Newspaper for a meeting with the Country and Suburban Circulator, a managerial employee in charge of newspaper circulation outside the city limits of Seattle. At these meetings various matters concerning circulation are discussed in- cluding increases or decreases in the number of subscribers. Per- formance, of the daily work of the drivers requires from 31/2 hours in some instances to 7 hours in others. The motor route drivers are not listed among employees on the- Company's pay roll. Each driver enters into a so-called "Dealer's Contract"with the Company.18 This agreement adverts to the driver as "dealer" and provides as follows : The Company will sell to the driver at prices therein specified daily and Sunday newspapers which it publishes, payment for papers purchased to be made monthly with- out deduction for ones not resold; the driver will resell at the Com- pany's fixed subscription price, and deliver, newspapers to subscribers on his route who are not otherwise served by the Company; the driver will use his utmost effort to maintain and extend the circula- tion of the-Company's newspapers in his territory by canvasses, by display of advertising material furnished by the Company, and in Is The sample printed form of contract introduced in evidence purports to be made a+ith the Seattle Post-Intelligencer, a corporation . However, it is clear from the record that the contract is with the Company. See footnote 2. 1274 N.ATTONAL LABOR 1iELATTONS BOARD other Ways suggested by the Company; the driver will not without the Company's consent purchase and resell or act as representative for newspapers not published by the Company; the driver will keep- a list of subscribers according to instructions given by the Company which list shall be the property of the Company; the Company will compensate the driver for all direct-by-mail subscriptions secured by him; the driver "shall have exclusive control over the methods he uses for sale and distribution, and over persons hired by- him" ; 1e the Company in its sole discretion may terminate immediately the contract if the driver sells the newspapers of or represents a com- petitor, if he fails "to provide proper delivery service," if he does not keep a proper subscription list, or if he in any way violates the contract; either party may terminate the agreement on 30 days' notice; the driver may not assign the contract without the Company's assent. On or about October 4, 1937, the Drivers Union bargained collect- ively with the Company concerning an allowance to drivers for-the cost of operating their automobiles and' for compensation for service performed in connection with the delivery of newspaper bundles to persons other than their subscribers. A substantial number of the motor route drivers were members of the union and were represented by it in the negotiations. As a result of the bargaining a contract was entered into by the Company and the Drivers Union which pro- vided for a weekly allowance to all drivers covering operation ex- pense of their automobiles, and compensation for the handling of bundles. We have had occasion to point out that the statutory definition of the word employee is of wide scope.20 As used in the Act the term embraces "any employee," 21 that is, all employees in the conventional as well as legal sense except those by express provision excluded. The primary consideration is whether effectuation of the declared policy and purposes of the Act 22 comprehends securing to the indi- 19The testimony is vague as to what persons, if any, ale employed by motor route dri',eis A wduess atated he knew of one instance of it driver who employed an assi-taat However, the same witness testified that some employees of the Company, like branchmen, occasionally employed persons who were not employees of the Company We do not feel hit such emplovment by a driver affects ]us own ieiationahup with the Company -"Hatter of Atlantic Cieyhound Covporatiora and Brotherhood of Railroad Trammien, 7 N L R li 1189. "'Section 2 (3) of the Act provides in part: "when used in this Act-(3) The teen "employee" shall include any employee * * " 21 Section 1 of the Act provides in pam t It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and proceduie of collective bargaining and by protecting the exercise by workers of full fieedom of association, self-organization , and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. DECISIONS AND ORDERS 1275 vidual- the rights guaranteed and protection afforded by the Act. The matter is not conclusively determined by a contract which adverts to and purports to establish the status of such person other than as an employee.' Public interest in the administration of the Act permits an inquiry into the material facts and substance of the relationship. We entertain no doubt that motor route drivers are employees within the legislative intent. Their position is relatively that of employees generally. The work they perform is a functional part of the business of the Newspaper, subject in large measure to the con- trol and right of control of the Company as to manner and mode of execution. Performance concerns not so much the accomplishment of any specified result as continuing operation in close association with the entire enterprise of the Company. The drivers have no real interest in the business and good will represented by the sub- scription lists; the business and good will are in fact the property of the Company available at any time to its exclusive enjoyment by termination of the drivers' contracts. The drivers cannot act as em- ployees or representatives of any competing publisher without the Company's assent but must devote their effort to securing new sub- scribers for the Company's ue\\ spapers. We do not consider the method by which the drivers are compensated as inconsistent with their employee status. In addition to the weekly allowance for car expense and carriage of bundles they receive the difference between the so-called purchase price and the regular subscription price. In- asmuch as the drivers deal only with newspapers delivered to sub- skribers their return is analogous to earnings measured by the number of subscription deliveries rather than profit from an independent business. It also appears that under applicable State law the strict legal relationship of motor route drivers is that of an employee and not an independent contractor. We find that motor route drivers are employees, within the mean- ing of Section 2 (3) of the Act.23 We find that the following employees of the Newspaper : 24 Home Edition District Men Helpers-Seattle; District Man-Tacoma; Branchmen; Branchmen's Helpers; Street Circulators-Seattle; Street Circulators-Portland; Roadmen; the following assistants Dtinnig, the Country and Subuiban Ciiculator testified, "Personally, I have consid- ered them [ motor route drivers ] as employees." Boettiger , the publisher of the Newspaper replied as follows to interrogation at the hearing by the Tiial Examiner: Q As a practical mattei, so far as supeivision and discipline go, you feel yourself in appioximately the same r elationship as with any of your employees' A Yes. \\ bile the stipulation above as to appropriate unit contains a genetal as well as a specific description of employees within this unit, it is evident from the record that one description is intended to be the equivalent of the other , and we have so considered them. 1276 NATIONAL LABOR RELATIONS BOARD to the Circulation Manager, namely, Branch Manager, Canvasser Manager. and Country and. Suburban Circulator; Traffic Clerks ; Return Clerks; Canvassers-City; Canvassers-Outside City; And Motor Route Drivers, constitute a unit appropriate for the pur- poses of collective bargaining, and that said unit will insure to these employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effec- tuate .the policies of the Act.. This unit is herein referred to as the circulation unit. B. The industrial unit The record - supports the conclusion that employees in the edi- torial, classified advertising, display advertising, promotion, cir- culation and purchasing' departments, and in the business office, of the Newspaper,25 excluding employees in the classifications compris- ing the circulation unit, described above, constitute' a unit appro- priate for'the purposes 'of collective bargaining., The evidence shows substantial interdependence' of work among these employees.' Thus editorial policy has important effects upon the work 'of employees in the circulation and advertising departments. These employees find that many problems arising in dealings with subscribers or advertisers, as the case may be, are related to matters of editorial policy. In turn, the solicitation of subscriptions by employees in the circulation'department relies in some measure upon the nature and extent of the advertisements. Similarly, employees in the edi- torial department are required to harmonize editorial policy with the demands and sympathies of advertisers. This is especially ap- parent in the work of the'editorial department in such sections of the newspaper as the drama, real estate, and automobile pages, where both the amount of space and the character of comment are dictated by the extent and nature of the advertisements. Since the news items in these pages are often but a supplement to the adver- tisements, the Company has assigned the automobile editor of its newspaper to work in both the editorial and advertising depart- ments, and its real-estate editor to work in close conjunction with an employee in charge of real-estate advertising. In addition, reg- ular reporters are frequently directed to write special features either for an advertiser or in connection with an advertisement.. Likewise, work in the business office is related to the other de- partments. The office manager in charge of classified advertising was formerly included as a member of the business-office staff, although his duties were substantially the same as at the present. Basic to all the work is the need for completing the related opera- ^ We do not include employees in the mechanical departments of the Newspaper, for the same reasons urged at 'the bearing by the Guild, as heretofore set forth, 'for excluding these employees from the larger unit. See V A supra. DECISIONS AND O1RDEHS 1277 tions, by fixed deadlines. Not only is the work of the employees in the above departments interdependent; it is integrated in many ways. Thus, one of the artists in the advertising department regu- larly draws editorial cartoons. The library facilities of the edi- torial department are constantly being used by employees in other departments, particularly those in the advertising department. This functional interdependence and coherence have resulted in a mutuality of interest among all the above-mentioned employees as to working conditions. The Fraternity 26 and the individual intervenors contend, how- ever, that irrespective of whether employees generally in the above- mentioned departments and business office, exclusive of those in the circulation unit, constitute an appropriate bargaining unit, 19 em- ployees of the Newspaper engaged in "creative work" in advertising properly do not come within such unit, or within any unit which in- cludes other employees of the Newspaper.21 It is urged that these 19 persons are part of a unit composed of all individuals in the city of Seattle employed at "creative" advertising; however, the appropriateness of such city-wide unit is not, of 'course, before us in this proceeding. The 19 individuals consist of the following employees: 12 advertis- ing men and 4 persons engaged in display-advertising service, all in the display-advertising department, and 3 artists and copy writers employed in the promotion department. Their work involves the sale of advertisement space in the newspapers for display advertising, and the preparation of display advertisements. In essence, the position of the Fraternity and individual intervenors is that all of these employees are engaged in "creative work" requir- ing a high degree of skill and ability, that they are a professional and craft group, and that, accordingly, their economic and other interests have little in common with those of other employees of the Newspaper. We do not find in the term "creative work" such a defi- nite and workable standard as would permit of differentiation be- tween the interests of these employees as employees and those of many others of the employees. Obviously,' numerous persons em- ployed by the Newspaper might be found to be occupied in creative work. Nor are the 19 employees, with the possible exception of a few, professional people in the sense that membei ship in their group requires long and prescribed education .28 While their work involves -"There is considerable, doubt as to whether the Frateinity is a labor organization, within the meaning of the Act . Since it seeks no determination of itself as bargaining repiesentative, this question need not be decided n This position conflicts with that of the Advertising Workers discussed below 's Cf Matter of Northrop Corporation and United Automobile Workers, Local No. 229, 3 N L. R. B 228, 237; Matter of Tennessee Copper Company and A F. of L Federal Union No. 21164, 5 N. L. R. B. 768, 773. 1278 NATIONAL LABOR RELATIONS BOARD an amount of training and experience, as well as ability, these factors alone are of little relevance here upon,the .issue of, which unit, will best secure to the employees of the Newspaper the right of collective bargaining. Nor do these employees form any well-defined group. The record shows that the functions and duties of the 19 are closely connected with the work of other employees in their own and other departments. The discussion above regarding such relationship is applicable to them. One of the persons employed in display-advertis- ing service also is engaged in -editorial Work. Another employee at work in promotion draws editorial cartoons. On the other hand, artists in the editorial department occasionally assist in the work of display advertising. While the 19 may consider themselves, be- cause of their ability, a group apart from their fellow workers, their interests are related. In a unit including employees in other depart- ments of the Newspaper these 19 should not be excluded.20 The, Advertising Workers contends that employees in,the°classi+fiied- advertising and display-advertising departments of the Newspaper should be found to constitute by themselves a separate bargaining unit. It is urged that substantial ground exists for divorcing these employees from the employees above-mentioned in the editorial, pro- motion, circulation, and purchasing departments and the business office, despite the functional interdependence and coherence which we have found in the work of all such employees. The employees which the Advertising Workers claims constitute an appropriate bargaining unit include the more highly skilled workers in display advertising, the lesser skilled in classified advertising, and the stenographers, clerical help, and office boys employed in the advertising departments. The main position of the Advertising Workers appears to be that the proper basis for determining the unit, at least in so far as it affects those employees, is the departmental structure of the Newspaper, itself. There is also the contention that these employees comprise a craft. We are not satisfied upon the facts of this case, that-these employees should be parted from the main stem. They form no group distinct in employee interest. The work of all does not fall within a well-defined craft, but is diverse. There is no history of collective bargaining, either as to the Newspaper or as to the newspaper indus- try, which would extend them an independent position. In previous cases we have considered employees in the advertising department of a newspaper a constituent part of a larger unit.30 We are of the opinion that these employees, under the circumstances, do not consti- tute alone an appropriate bargaining unit; that they properly should "See Matter of News Syndicate Co , Inc and Newspaper Guild of New Yak, 4 N L. R B 1071, 1074-1075; Matter of Flevsoher Studios . Inc. and Commercial Artists & Designers Union-Ameiiean Fede,ation of Labor, 3 N L R. B 207. 3'Matter of Daily Mirror and The Newspaper Guild of New York, 5 N. L. R. B 362. Matter of News Syndicate Co , Inc. and Newspaper Guild of New York, 4 N. L R. B. 1071. DECISIONS AND OI:DEIS 1279 not be excluded from a unit which includes employees in the other departments above-mentioned. There is one further question. A substantial number of subscrip- tions for publications of the Newspaper are secured through solici- tation of prospective subscribers over the telephone. There are two groups of persons engaged in such work, the telephone canvassers and the outside telephone crew.3` The first group work at the plant; the second at their respective homes. At the hearing the Company took the position that the supervisor of the outside telephone crew, one Turner, was not an employee of the Newspaper, within the meaning of the Act, but an independent contractor, and that the remaining members of the crew under him, called telephone solicitors, were not its but his employees. Prior to September 26, 193(, Turner was employed by the Company as one of the regular telephone crew managers of the Newspaper. Since that date, Turner and the Company have entered into a certain contract, described below, and his name and position have been removed from the Company's pay roll. The work performed by Turner at the present, both in character and mode, as well as the authority exercised by him over members of his crew, are substan- tially the same as that which existed preceding September 26.32 Turner had and has full charge of and supervision over the work of the outside telephone crew. He still has and regularly uses a desk in the office of the circulation department of the Newspaper. Each day he receives reports from thel outside telephone workers concern- ing any subscriptions secured, and furnishes them with the names of prospective subscribers for further solicitation. He hires and dis- charges such workers, as he did prior to September 26, and pays them their weekly earnings. Prior to September 26, these payments were made by checks drawn on the Company. They now are drawn on his own account. Similarly, Turner's work relations with the News- paper are the same at the present as they were before that date. One Camozzi, an employee of the Newspaper, assists him in verifying subscription orders which have been stopped by subscribers before their expiration. The office manager in the circulation 'department, one Luke, and Camozzi regularly furnish Turner with so-called "stop" cards, that is, cards containing certain information about subscribers who have terminated their subscriptions. On the other hand, Turner during the course of his work transfers certain records, which he keeps, to the bookkeeper of the department. Turner is R The names of mmnbeis of the outside telephone craw , as of the heanng, are as follows . George Tanner, John Cala nna, itogei Connor. James Hedrick, Violet Ridgway, Hazel Simnp- son Adeline Evans, Dotothy-Glenn. D Leland, Rhoda- Patterson, Ida Stewart, and Edith Ziegler 32 The only difference noted on the record was the use at night on occasion of the News- paper 's telephone for solicitation , whereas such practice is no longer followed. 1280 , NATIONAL, LABOR REL1TTONS BOAT D paid weekly at fixed rates for each subscription order secured during the week. These rates equal in sum the amount he was paid for each order, prior to September 26, together with the amount which the Company then paid the solicitor who obtained such order, and an allowance for Federal Social Security employer taxes.33 On September 26, 1937, Turner entered into an oral agreement with the Company which was reduced to writing about January 1, 1938. The contract terms Turner a "contractor" and provides that he is to solicit subscription orders, by telephone, for the Newspaper, throughout Seattle, in consideration of certain specified payments to be made by the Company for each order secured. The contract fur- ther provides that Turner "will not represent to any person" that he is employed- by the Company ; that he should "carefully instruct each and every person employed by him that they are working for him and must look to him for their compensation," that he "may not list any telephone in the name" of the Company or the News- paper or any similar name. The contract also provides that the Com- pany "will have no authority whatsoever over nor will it purport to give orders to or deal with any of the employees of the Contractor. Hiring, firing and terms of employment shall be at the sole discre- tion of the Contractor, except that the Contractor will abide by all lawful governmental regulations in respect to minimum compensa- tion and conditions of employment. The Contractor will pay all proper taxes and assessments for workmen's compensation fund, old age or unemployment insurance, and all other taxes and impositions by any lawful taxing authority." As above stated whether an individual is an employee, within the meaning of the Act, is not conclusively determined by the provisions of a contract, such as that made by the Company with Turner. Without deciding whether Turner by virtue of his contractual rela- tionship may for certain purposes, be an independent contractor, we are satisfied that he is an employee, within the meaning of Section 2 (3) of the Act. The character of his work and authority, and the functional relationship thereof to the business of the Company are essentially the same as that which prevailed at a time when he was considered one of the regular telephone crew managers and employees of the Newspaper. The extent of supervision and control exercised- by the Company over his work has not, in any real sense, been changed since September 26. In view of the broad meaning of the word employee as used in the Act, and the declared policies and pur- Turner was interrogated at the hearing, as follows : Q You do pay out, then, to the Phone Solicitors the same proportion of the money which they previously received? A. Yes * * s_ Q. Otherwise, your work is much the same as it was before the contract? A. Yes. DECISIONS AND ORDERS 1281 poses of the statute, we find that George Turner is an employee of the Newspaper, within the meaning of Section 2 (3). These same considerations lead us to conclude that the remaining members of the outside telephone crew, namely , the telephone solici- tors, likewise are employees , within the Act. As indicated above, they are engaged regularly in the solicitation of subscriptions for the News- paper by telephone. They come daily to the plant to report to Turner the orders secured , and to be furnished the names of pro- spective subscribers for further solicitation . These daily calls re- quire about 45 minutes each. The solicitors are paid weekly at a fixed rate for each order secured, and earn on an average from $20 to $35 each week. They are subject to control and discharge by. Turner; whom we have found occupies the same relative position to the Newspaper which he did before September 26. In its essen- tial nature and relation to the business of the Newspaper , the work of the solicitors is no different from, that of the telephone canvassers, who are considered employees of the Newspaper. The fact that solicitors are now paid by Turner 's check, or that they work at home, does not compel a finding that they are not employees under the Act. The declared policy and procedure of the Act encompass the needs of such - employees . We find that the telephone solicitors under Turner are employees of the Newspaper , within the meaning of Section 2 (3) of the Act. We find that the persons known as the outside telephone crew are employees of the Company, within the meaning of Section 2 (3) of the Act. We are of the opinion that these employees form a component part of a bargaining unit which includes the employees of the edi- torial, classified advertising, display advertising, promotion, circu- lation , and purchasing departments and the business office of the Newspaper. At the hearing the Guild contended that all executive and depart- ment managers of the Newspaper 'properly should be excluded from the appropriate' unit, and that all other supervisors should be in- cluded . None of the parties took issue with this position and we see no reason for, not 'acquiescing therein. Upon .:all •the' ,circumstances of the ease we are satisfied that em- ployee. in,the larger unit which we have been considering, subject to such exclusions as have been indicated , constitute an appropriate bargainin^;.'unit. We accordingly find Ihat'enlployees of the News- paper in f he' editorial ,: classified-advertising, display-advertising, pro-: motion, circulation,' and purchasing departments , and the business office, and the outside telephone crew, but excluding' employees in the classifications comprising the circulation unit, executives, and department managers, including, however, all other supervisors, con- stitute 'a unit appropriate for the purposes of collective bargaining, 1282 NATIONAL LABOR RELATIONS BOARD and that said unit will insure to these employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. This unit is herein referred to as the industrial unit. VI. THE DETERMINATION OF REPRESENTATIVES A. The circulation unit The stipulation of the Guild and the Drivers Union, heretofore mentioned, sets forth that the parties thereto agree that the Board should certify the Drivers Union as the sole bargaining representative of the employees in, what is here termed, the circulation unit. How- ever, the parties cannot substitute an agreement of such- nature between themselves for a determination, by the Board, of representa- tives in the circulation unit. At the hearing the Drivers Union intro- duced evidence, more fully discussed below, in support of its claim to having been designated as bargaining representative by a majority of the employees in the circulation unit. Thereafter, during the hear- ing, it announced that it was not interested in any certification of itself as representative upon the record, but merely sought an election to determine such matter in the unit which it claimed to be appro- priate. Upon the Drivers Union taking this position opposing parties withheld any cross-examination of witnesses of the Drivers Union concerning its representation of a majority of the employees in, the circulation unit, and offered no evidence themselves on that issue. As: heretofore set forth, all parties at the hearing, except the Guild, either had no interest or disclaimed any interest in the matter of representation for the circulation unit. Since the hearing the Guild has entered into the stipulation above-mentioned acquiescing in a certification by the Board of the Drivers Union as exclusive repre- sentative of employees in the circulation unit. We interpret ;this action by the Guild as a waiver of its right to cross-examine and introduce evidence upon the subject of the Drivers Union's majority. We, accordingly, may proceed to a determination of, representatives, in the circulation unit upon the evidence in the record. There was introduced into evidence a list showing the names of employees of the Newspaper classified according to their work or. em- ployment. This list establishes that there are 77 persons employed by the Company within the classifications comprising the circulation unit, excluding motor route drivers, return clerks, and traffic clerks. Evi- dence also was introduced to the effect that there are 48 motor route drivers 34 engaged in circulation work for the Newspaper, 1 traffic clerk and 2 return clerks. Consequently, there are 128 employees in, the circulation unit. 34Testhnony as given of .ajpiozimateiy 47 such employees. The membership list of the Drivers Union introduced in evidence fixes the number at 48. DECISIONS AND OP.DIaa 1283: The Drivers Union also introduced into evidence 14 petitions ad- dressed to the Board and bearing 6S signatures, stating, among other things, that the signatories were members of the Drivers Union and were employed in the circulation department of the Newspaper. A check of these signatures against names on the list of employees shows that 56 employees in the circulation unit signed these petitions. The Drivers Union also introduced into evidence a list of members setting forth, among other things, the names of 48 members of the Drivers Union who are motor route drivers.35 Thus, the foregoing evidence establishes that of a total of 128 employees in the circulation unit, 104 have designated the Drivers Union as their representative for the purposes of collective bargaining. We find_ that the Drivers Union has been designated and selected' by a majority of the employees in the circulation unit as their repre- sentative for the purposes of collective bargaining. The Drivers Union is, therefore, the exclusive representative of all the employees= in such unit for the purposes of collective bargaining and we will so, certify. B. The industrials unit The Guild introduced some evidence tending to show that a ma- jority of the employees in the industrial unit had designated it as- their representative for the purposes of collective bargaining. There- after during the hearing it stated that it too was seeking only an election in' the unit' it claimed W'as 'appropriate. 'Accordingly, we find that the question which has arisen concerning the representa- tion of employees in the industrial unit can best be resolved by hold- ing an election by secret ballot. The only labor organization which will appear on the ballot is the Guild, inasmuch as it is the sole labor organization -claiming to represent a majority of the employees in the industrial unit. The date March 5, 1938, shall be taken in de- termining eligibility to vote.- Included among those who shall" have an opportunity to vote in the industrial unit are the following- three individuals:' Ruby Givan, Helen Hoover, and Ray, Griffith, the persons with respect to whom charges of unfair labor practices were brought in Case No. C-795. The eligibility of these persons- as voters will depend upon the disposition of their cases in that pro- ceeding. In the event that the respondents in Case No. C-795 are- found to have committed unfair labor practices in discharging these individuals and the Board orders their reinstatement, they shall be- as The proof showed that names on this list which had no star, after then were names of members , who were motor route di fivers. The evidence also showed , as heretofore indi- cated , t9at'th4Diicers Union ` recently bargained collectively -'in'behiilf'of these motor route- drivers with the Company after having satisfied the Company that the Drivers Union represented a majority of the drivels as 1t the ! hearing 'the Company and the labor oiganizations agreed that this date would' be a cats factory date for the i-eteiwinatiou of eligibility 134068-3e-Nol ix--82 1284 NATIONAL LABOR RELATIONS BOA1tD considered as having been eligible voters. However, their ballots shall be segregated. In determining the results of the election, the total number of ballots cast in the industrial unit will first be con- sidered as including whatever ballots these three may have cast, and ,if the Guild obtains a majority of such number Without the benefit 'of any ballot or ballots cast by said persons, or if the Guild should fail to gain a majority of the ballots cast even if the ballots cast by these persons were assumed to be in its favor, such ballots shall 'not be considered. In the event that the counting of such ballots as may be cast by these three persons is essential to the deterniinatlon .of the issue of a majority , the results of the election shall not be -announced until after the disposition and decision of the Board' in 'Case No. C-795, at which time such ballots may or may not be ,counted, as the decision in such case shall indicate. 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. A question affecting commerce has arisen concerning the rep- 'resentation of employees of the Seattle Post-Intelligencer Depart- ment of Hearst Publications, Inc., a corporation , within the meaning .of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. The motor route drivers and outside telephone crew of the 'Seattle Post-Intelligencer Department of Hearst Publications , Inc., a corporation, are employees , within the meaning of Section 2 (3) .of the Act. 3. The following employees of the Seattle Post-Intelligencer De, partment of Hearst Publications , Inc., a corporation : Home Edition District Men Helpers-Seattle; District Man-Tacoma; Brauchmen; Branchmen's Helpers; Street Circulators-Seattle; Street Circula- tors-Portland ; Roachnen ; the following assistants to the Circula- tion Manager , namely, Branch Manager, Canvasser Manager, and Country, and Suburban Circulator; Traffic Clerks; Return Clerks; Canvassers-in City; Canvassers-Outside City; and Motor Route Drivers constitute a unit appropriate for the purposes of collective -bargaining, within the meaning of Section 9 (b) of, the National -Labor Relations Act. 4. Newspaper Drivers and Helpers , Local No. 763 , is the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 ( a) of the -National Labor Relations Act. 5. The employees of the,Seattle Post-Intelligencer Department, of -Hearst Publications, Inc., a , corporation , in the editorial, classified- advertising, display-advertising , promotion , circulation and purchas- DECISIONS AND'O1{DEHS - 1285 ing departments, the business office, and the outside telephone crew,37 but excluding Home Edition District Men Helpers--Seattle; District Man-Tacoma; Branchmen; Branchmen's Helpers; Street Circu- lators-Seattle; Street Circulators-Portland; Roadmen; the follow- ing assistants to the Circulation Manager, namely, Branch Manager, Canvasser Manager, and Country and Suburban Circulator; Traffic Clerks; Return Clerks; Canvassers-City; Canvassers-Outside City; and Motor Route Drivers, and excluding also all executives and de- partment managers but including all other supervisors, constitute a unit appropriate for the purposes of collective bargaining, within -the meaning of Section 9 (b) of the National Labor Relations Act. CERTIFICATION OF REPRESENTATIVES By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, . IT IS HEREBY CERTIFIED that Newspaper Drivers and Helpers, Local No. 763, affiliated with International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, has been designated and ;selected by a majority of all the following employees of Seattle Post-Intelligencer Department of Hearst Publications, Inc., a cor- poration; Home Edition District Men Helpers-Seattle; District Man-Tacoma; Branchmen; Branchmen's Helpers; Street Circu- lators--Seattle; Street Circulators-Portland; Roadmen; the follow- ing assistants to the Circulation Manager, namely, Branch Manager, Canvasser Manager, and Country and Suburban Circulator; Traffic 'Clerks; Return Clerks; Canvassers-City; Canvassers-Outside City; and Motor Route Drivers, as their representative for the purposes of collective bargaining, and that pursuant to the provisions of Section 9 (a) of the National Labor Relations Act, Newspaper Drivers and Helpers, Local No. 763, affiliated with International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, is the exclusive representative of all such employees, for the purposes of collective bargaining in respect to rates of pay, wages, hours of 'employment, and other conditions. of employment. 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 Re- lations Act, and pursuant to Article III, Section 8, of National Labor a, The members of the outside telephone clew include their supeivisot, Turner. See footnote 31. 1286 NATIONAL LABOR RELATIONS BOARD Relations ,Board, Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as pact of the investigation authorized by the Board to ascertain representatives for the purposes of, collective bar- gaining with Hearst Publications, Inc., a corporation, an election by secret ballot shall be conducted within thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Nineteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sec- tion 9, of said Rules and Regulations, among the employees of the Seattle Post-Intelligencer Department of Hearst Publications, Inc., a corporation, employed on March 5. 1938, in the editorial, classified- advertising, display-advertising, promotion, circulation, and purchas- ing departments, the business office, and the outside telephone crew,38 but excluding Home Edition District Men Helpers-Seattle ; Dis- trict Man-Tacoma ; Branchmen ; Branchmen's Helpers ; Street Cir- culators-Seattle; Street Circulators-Portland ; Roadmen ; the fol- lowing assistants to the Circulation Manager, namely, Branch Man- ager, Canvasser Manager, and Country and Suburban Circulator; Traffic Clerks; Return Clerks; Canvassers-City; Canvassers-Out- side City; and Motor Route Drivers, and excluding any of the fore- going who have since quit or have been discharged for cause, and ex- cluding also all executives and departinent managers but including all other supervisors, to determine whether or not they desire to be represented by Seattle Newspaper Guild, Local No. 82, for the pur- poses of collective bargaining. As part of the election hereby di- rected, a separate secret ballot shall be taken by the Regional Di- rector of Ruby Givan, Helen Hoover, and Ray Griffith to determine whether or not they desire to be represented by said labor organiza- tion, the votes cast to be kept segregated and considered in accordance with the above Decision. 88The members of the outside telephone crew referred to are the 12 persons named heretofore See footnote 31.