The Daily Press, Inc.

THE DAILY PRESS, INCORPORATED 573 clearly rejected any intent to exclude those utilities from our juris- diction. The illogical and arbitrary formula now enunciated and applied by the Board majority will remove half or more of those public utilities from the exercise of our jurisdiction in conflict with this precedent and experience and despite the dangers to the free flow of commerce that such a curtailment involves. We have pointed out in our Breeding Transfer opinions, the authority of any State agency, even where one exists, to act in these areas from which our colleagues now withdraw is extremely dubious. That factor when related to the obvious and crucial status of public utilities does not portend in- dustrial peace or the free flow of that commerce. Accordingly, as we would continue to assert jurisdiction over this Employer and over all public utilities subject to the rule of de ?ninimis, we must dissent. THE DAILY PRESS, INCORPORATED and PENINSULA INDEPENDENT EDITORIAL WORKERS ASSOCIATION, PETITIONER. Cases Nos. 5-RC- 1458 and 5-RU-1380. October 26,1954 Decision, Order, and Amendment of Certification Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Henry L. Segal, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : The Employer is a Virginia corporation engaged in the city of Newport News, Virginia, in the publication of a morning newspaper, The Daily Press, and an afternoon newspaper, The Times Herald. The population area served by the Employer's 2 newspapers is esti- mated at about 185,000. According to the Employer's comptroller, the Employer's policy is to limit its distribution to the area of the three cities of Newport News, Hampton, and Warwick, Virginia, and surrounding counties. Combined daily circulation of the Em- ployer's newspapers is 55,841, of which 205 newspapers are circulated outside the State of Virginia. Sunday circulation in the State is 42,108 and outside the State is 225. The Employer's gross income for the calendar year 1953 was $2,406,564 of which $200,637 was derived from national advertising. Its principal purchases for the calendar year 1953 were $29,412 for Associated Press wire service, $31,793 for feature syndicates, and $469,562 for newsprint. In connection with these purchases, the record discloses that the Employer is a member of the Associated Press and is represented on the membership rolls by two of its executives. Mem- 110 NLRB No. 95. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership involves interchange of news between member newspapers and the Employer is obligated to furnish such news from its area to the Associated Press. The Employer is also a member of the Asso- ciated Press wire photo circuit. The Employer has a contract with Montmorensy Paper Company, which has offices in New York City, for the newsprint. The newsprint is manufactured in Canada and possibly in other States of the United States, but it is conceded that none is manufactured in the State of Virginia. The paper company's agent is the Hiden Storage and Warehouse Company which main- tains a warehouse in Newport News, Virginia. Montmorensy pays Hiden for the cost of storage and insurance while the paper remains in Hiden's custody. The Employer draws newsprint as needed from the warehouse by purchase order and payment is made directly to Montmorensy. The Employer contends that, despite its relationship with the As- sociated Press, its operations are so local in character that the pur- poses of the Act would not be served by the Board's exercise of juris- diction here. On the other hand, the Petitioner and the Intervenor 1 insist that there are interstate aspects involved which warrant the Board's assertion of jurisdiction in this case. It has been the consistent position of the Board that it better ef- fectuates the purposes of the Act, and promotes the prompt handling of major cases, not to exercise its jurisdiction to the fullest extent possible under the authority delegated to it by Congress, but to limit that exercise to enterprises whose operations have, or at which labor disputes would have a pronounced impact upon the flow of interstate commerce. In furtherance of that policy, the Board in October 1950 adopted certain standards to govern its assertion of jurisdiction. Those standards resulted from a study of the Board's experience up to that time. Among the standards adopted in 1950 was the so-called "newspaper" standard.2 Pursuant to this standard, the Board asserted jurisdic- tion over all newspaper companies which hold membership in or sub- scribe to interstate news services, or publish nationally syndicated features, or advertise nationally sold products, irrespective of the size of the particular enterprise involved or the possible effect upon inter- state commerce. Early this year the Board undertook to study and reappraise the 1950 jurisdictional standards in the light of the Board's experience since their adoption and also in the light of changing economic con- ditions. Based upon that study and reappraisal it is our opinion that the jurisdictional standards established by the Press, Incorporated 1 American Newspaper Guild, CIO, was properly permitted to intervene in this pro- ceeding as an interested party because of its certification as bargaining representative of the news department employees of the Employer. 2 Press, Incorporated, 91 NLRB 1360. THE DAILY PRESS, INCORPORATED 575 decision should be revised so that the Board's long-established policy of limiting the exercise of its jurisdiction to enterprises whose opera- tions have, or at which labor disputes would have, a pronounced im- pact upon the flow ofinterstate commerce can be better attained. We have, therefore, determined that in future cases, the Board will assert jurisdiction over newspaper companies which hold membership in or subscribe to interstate news services, or publish nationally syndi- cated features, or advertise nationally sold products, if the gross value of business of the particular enterprise involved amounts to $500,000 or more per annum.' Applying this standard to the instant case, we find that, as the Employer's gross income for the calendar year 1953 was $2,406,564-well above the minimum figure here announced-it will effectuate the policies of the Act to assert jurisdiction here. Judged by their dissents in this and the Breeding case,4 our dissent- ing colleagues profess to subscribe to the Board's long-established policy of limiting the exercise of its jurisdiction to enterprises whose operations have a pronounced impact upon the flow of interstate com- merce. If so, it is difficult to reconcile their insistence upon a stand- ard which would have the Board assert jurisdiction over newspaper companies without any regard, however slight, to their impact upon commerce. A standard under which the Board automatically asserts jurisdiction over any and all newspaper companies irrespective of their size or possible effect upon commerce can scarcely be considered in furtherance of the Board's long-established policy, unless one takes the esoteric position, as our dissenting colleagues presumably do, that the smallest newspaper in the smallest village in the Nation carrying a syndicated comic strip has a pronounced impact upon commerce. Our dissenting colleagues state that the jurisdictional standard which we are adopting today will place approximately 65 percent of the daily and 95 percent of the weekly and semiweekly newspapers in the country outside the Board's jurisdiction. From this the dissent argues that "in view of the fact that in 1952 over 275,000 employees worked for newspapers in the United States, a not inconsequential portion of the Nation's working force is affected by this limitation upon the Board's jurisdiction," the implication being that 65 to 95 percent of the Nation's newspaper employees will be denied the pro- tection of the Act. Even if one were to assume arguendo the validity of the dissent's premise, and it is substantially in doubt since a not in- considerable number of newspapers that the dissent includes in its computation has always been beyond the Board's reach because of the lack of legal jurisdiction, apart from questions of policy, the impres- sion which the dissent seeks to create of a mass exclusion of newspaper "To the extent that Press, Incorporated, 91 NLRB 1360, and cases relying thereon, are inconsistent with our decision herein, those cases are overruled. 4 Breeding Transfer Company, 110 NLRI3 493 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees from the protection of the Act is a distortion of the facts. The Bureau of Old Age and Survivors' Insurance (OASI) reports from a study covering the year 1947, that elimination of 65 percent of the Nation's newspapers would eliminate no more than 8 percent of all the newspaper employees in the country. Thus viewed, our new jurisdictional standard is well calculated to promote the Board's long- established policy of limiting its jurisdiction to enterprises having a pronounced impact upon commerce without making any unwarranted inroad upon the Act's protection of newspaper employees. We also note in passing the interesting gloss which our dissenting colleagues seek to insert in prior Board decisions respecting the asser- tion of jurisdiction over newspaper companies. They would have one believe that in adopting the jurisdictional standard which we are today amending, our predecessors discussed their reasons in detail, sup- ported their findings by documentation, and established beyond perad- venture of doubt the wisdom of their action. A reading of the official text of the pertinent decision furnishes, however, no foundation what- ever for such an interpolation. Rather they establish that our prede- cessors, as do we, relied upon their evaluation of administrative expe- rience and applicable studies. If in so doing, our predecessors and we are now to be carelessly labelled arbitrary and capricious, those terms, we submit, are no longer words of art which are susceptible of judicial application. In the area of jurisdiction, as in other fields of policy, we recognize that any standard or rule is in its ultimate analysis a value judgment involving numerous facts. Today we are adopting a new jurisdic- tional standard which, in our considered judgment, will best effectuate the policies of the Act in asserting jurisdiction over newspaper coin- panies. The efficacy of that standard will be found in the test of time and application and not in the prejudgments of our dissenting col- leagues. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. No question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 9 (c) (1) and Sections 2 (6) and (7) of the Act for the following reasons: Pursuant to a petition filed by the Intervenor herein, an agreement for consent election was executed in Case No. 5-RC-1380 by the In- tervenor and the Employer on November 5, 1953. The unit which was agreed upon by the parties consisted of all employees of the Em- ployer in the news departments of the Daily Press and Times Herald, including news department employees at the Employer's Gloucester, Hampton, and Williamsburg bureau, but excluding the managing editors, city editors, sports editors, and wire editors of the Daily Press THE DAILY PRESS, INCORPORATED 577 and Times Herald whom the parties agreed were supervisors , the edi- torial writers of both newspapers , and a darkroom assistant. The elec- tion in Case No. 5-RC-1380 was conducted on November 19, 1953, and, according to the tally of ballots, of approximately 39 eligible voters, 30 votes were cast for the Intervenor, 7 votes were cast against the Intervenor, and 1 ballot was challenged. On November 30, 1953, the Intervenor was certified as the exclusive bargaining representative of the aforementioned news department employees. However, the par- ties have not as yet entered into a collective-bargaining agreement. The Petitioner seeks to represent the employees who were excluded from the unit in Case No. 5-RC-1380. It contends that these em- ployees were improperly excluded and are therefore entitled to an election and separate representation either as a residual unit or as a previously unrepresented fringe group. Although the Employer con- curred in their exclusion in Case No . 5-RC-1380, it agrees, with cer- tain exceptions , to the alleged impropriety of the unit in the consent election. However, it disagrees with the Petitioner's position that the excluded employees can be considered a fringe or residual group entitled to separate representation, but contends that the classifica- tions petitioned for here are part of its news and editorial depart- ment and should be included in any unit involving that department, that the unit established in Case No. 5-RC-1380 was faulty because of the misapprehension of the parties as to the duties and functions of the employees resulting in the incorrect inclusion of certain em- ployees and the exclusion of others , that the certification should be declared null and void and revoked by the Board, and that a new election should be directed covering at a minimum all employees properly belonging in a news department unit. The Employer fur- ther suggests that the Board should consider whether the appropri- ate'unit should not be broader in scope and consist of all its non- mechanical employees . As an alternative position , the Petitioner states that if the Board agrees with the Employer and sets aside the certification in Case No. 5-RC-1380, it would desire to participate in an election in a unit of all news and editorial department employees, including the employees it seeks in the instant petition. Contrary to the Employer and the Petitioner, the Intervenor as- serts that the employees who were not included in the unit in Case No. 5-RC-1380 principally because it was agreed that they were super- visors were properly excluded by the parties. However, if the Board should find that any employees were improperly included or excluded, the Intervenor agrees with the Employer that they would not con- stitute a residual or fringe group. It takes the position that in this event, as the fundamental unit of all news department employees es- tablished in Case No . 5-RC-1380 is an appropriate one and the results 338207-55-vol 110-38 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the election in that case were so conclusively in the Intervenor's favor that its majority would be unaffected by the inclusion or exclu- sion of all disputed categories of employees involved herein, the par- ticular employees merely should be added to or removed from the In- tervenor's unit by the Board and the petition should be dismissed. The Intervenor also asserts that the complete remedy for the situa- tion, assuming any impropriety in the exclusion or inclusions in its unit, would be for the Board to amend its certification accordingly. However, it questions the utilization of such a procedure here because in its opinion, the Employer's position in this proceeding is tanta- mount to a collateral attack upon the unit established in Case No. 5-RC-1380. In the Intervenor's view, a certification should not be amended in a collateral proceeding, but only by motion in the pro- ceeding in which it was issued and a final determination should stand unless changed by direct proceeding against the determination. We find merit in the contention of the Employer and the Intervenor that the employees sought in the petition cannot be considered either a residual or fringe group entitled to an election and separate repre- sentation. They are not a residual group of the type which the Board has on occasion found to be an appropriate unit because they do not comprise all the Employer's unrepresented nonmechanical employees .5 That these employees are the sole remaining unrepresented group in the department is not sufficient to constitute them an appropriate resid- ual unit where other unrepresented nonmechanical employees in the plant are not also included.' Nor are they a fringe group of employees, such as was involved in the Zia case 7 cited by the Petitioner, who would be entitled to an election before being placed in an established bargaining unit. Thus, as will be indicated in detail infra, other than the alleged supervisory status of practically all these employees they are indistinguishable as a group from the employees in the Inter- venor's unit in Case No. 5-RC-1380 because in the main they have the same duties and do work identical to that of the other employees in the unit. Moreover, the Intervenor's certified unit can hardly be de- scribed as an established or historical bargaining unit at this stage when no contract has as yet been entered into between the Employer and the Intervenor covering the employees who voted in Case No. 5-RC-1380 and the Intervenor therefore has not actually had an opportunity to represent them. However, we do not agree with the Employer that because the em- ployees petitioned for do not constitute a residual or fringe group and because of the inadvertent exclusion and inclusion of employees in Case No. 5-RC-1380, it follows that the Intervenor's certification 6 California Corihce Steel and Supply Corp., 104 NLRB 787; Central Mercedita, Inc., 100 NLRB 1505 6 The Item Company, 108 NLRB 1261. 7 The Zia Company, 108 NLRB 1134. THE DAILY PRESS, INCORPORATED 579 should be revoked and a new election held. For, it is clear that, except with regard to the disagreement as to particular inclusions and exclu- sions in Case No. 5-RC-1380, the validity of the Intervenor's out- standing certification in all other respects is unchallenged as is its majority status with respect to employees in the certified unit. In- deed, although the Employer suggests that we consider whether a unit comprising employees in all its nonmechanical departments- which we have stated is the optimum bargaining unit in the news- paper industry-is proper here, it recognizes that we have often held that units of single major departments, such as was involved in Case No. 5-RC-1380, are also appropriates In light of the fact that the Employer's objections to the unit in Case No. 5-RC-1380 are not di- rected to the basic structure of the unit, but to its composition, and the fact that the Intervenor is the majority representative of the Em- ployer's news department employees regardless of which of the dis- puted classifications of employees we now find should be included or excluded, we view the situation as substantially the same as in those cases where we have amended a certification either on motion by one of the parties 0 or on our own motion.1° While we are inclined to agree with the Intervenor that the best procedure would have been for this issue to have been raised and disposed of in Case No. 5-RC-1380, as the duties of the employees in question have been fully litigated here, we shall, as a matter of administrative expedience, after determining the status of each of the employees, order the certification in Case No. 5-RC-1380 amended accordingly. In view of the fact that we find that the unit sought by the Peti- tioner is inappropriate and the basic news department unit in Case No. 5-RC-1380 for which the Intervenor has been recently certified is appropriate, we reject the Petitioner's request that an election be directed in the unit petitioned for as well as its alternative request that an election be directed in the Intervenor's currently certified unit of all news and editorial department employees. Accordingly, we shall dismiss the petition herein. We turn now to a consideration of the disputed categories of employees. At the outset it should be noted that the Employer has a single newsroom which is utilized by the Daily Press staff in the late after- noon and evening hours and by the Times Herald during the morning and early afternoon hours. 6 The Item Company, footnote 6, supra; The Chicago Daily News, Inc., 98 NLRB 1235 and cases cited therein B Michigan-California Lumber Company, 107 NLRB No. 214 (not reported in printed volume of Board Decisions and Orders) ; Clarostat Mfg. Co., Inc, 105 NLRB 20; Bluff City Broadcasting Co, 102 NLRB 102; Tide Water Associated Oil Company, 101 NLRB 570, Bausch and Lomb Optical Company, 92 NLRB 139. 10 Briggs Manufacturing Company, 101 NLRB 74; Sonotone Corporation, 100 NLRB 1122. 580 DECISIONS Or NATIONAL LABOR RELATIONS BOARD The managing editors: Each of the Employer 's papers has a managing editor to whom the Employer looks for control over the news staffs at work on their respective papers. The desks of each of the managing editors are located in the newsroom at a vantage point which enables them to observe almost everything that transpires in the room . One of the Employer's executives testified that each managing editor "has the responsibility of getting out his particular newspaper, and he is given a total number of columns , a space, a quota to fill, and it is his duty to see that it is gotten out on time ; and he is held responsible for the orderly working of his department in that connection." This official further stated that it is the managing editor's "duty to see that the news, locally, for example, is gathered by the reporters and turned in, and that it is processed , and he also directs the general makeup of the paper." According to the official, the managing editor is the foreman in charge of the department and has the responsibility of maintaining discipline and setting any hours or working conditions . The record discloses that the managing editor has the authority within the newsroom to make or change the assignments of reporters and he alone may change working hours or authorize overtime within the policies laid down by management. He is also responsible for the approval of expense vouchers turned in by employees in the newsroom and for overtime . Memoranda affecting working conditions or the operation of the newsroom are directed by management to the managing editor and he alone is expected to effec- tuate the policies of management in the newsroom . He does not have the authority to hire or fire employees , but apparently he can recom- mend the same. In our opinion , it is clear from the facts detailed above that the managing editors responsibly direct the work of the employees in the news departments of the Employer and for this reason we find that they are supervisors within the meaning of the Act ." Accordingly, they were properly excluded from the unit. The city editors: As the duties of the city editors differ somewhat, we shall treat them separately . Louis I. Bain has the title of city editor on the Times Herald. He is a highly skilled reporter who spends practically all his time covering news stories and writing. He is used by the managing editor on stories of special significance, and on the important beats that have to be covered. He occasionally assists in the editing of copy at the request of the managing editor- It appears that this involves a clerical function which is often per- formed by various ' reporters on the staff. Bain testified that when he was designated as city editor he was told that he was being given the title so that he could substitute for the managing editor when the 11 Quaker Markets, Iuc, Thiee, 108 NLRB 1299 THE DAILY PRESS, INCORPORATED 581 latter was on his vacation or ill. However, he does not substitute for the managing editor on any regular basis. He has no authority to hire or fire employees, to discipline them, to make effective recom- mendations regarding them, to direct their work on his own initiative, to make assignments, nor is he consulted with respect to personnel actions. Matthew T. Fulgham is the city editor of the Daily Press. He, like Bain, is also a skilled reporter who is utilized by the managing editor on special assignments of importance. One of his duties is to make up the first local page of the paper. His principal function, however, appears to be to act as "desk man" and relieve the managing editor of routine chores of a clerical or repetitive nature. Examples of such routine duties are keeping a log book for reporters' assignments, answering the phone and transferring calls to the proper persons, and distributing clippings of the afternoon paper to reporters for possible rewrites. Fulgham has no authority with respect to the as- signments of reporters, although he may transmit assignments to them at the managing editor's request. He can not hire or fire em- ployees nor does he have any control over their work. In view of the foregoing, it is apparent that the titles of Bain and Fulgham as city editor, have been accorded to them in recognition of their seniority, experience, and job performance and do not involve such authority as would warrant a finding that they are supervisors within the meaning of the Act. We shall, therefore, include them in the unit. The sports editors: On both of the Employer's papers, the sports section is run on a cooperative basis, that is, sports coverage is appor- tioned by mutual consent among the men according to their seniority, desires, and proficiency in a particular sport. The sports editors de- vote full time to actual sports coverage which includes the writing of a column and reporting of sports events. Other sports reporters perform the same functions. Each reporter and sports editor has his copy read by another reporter or the sports editor depending upon who is available. Because the sports editors are so frequently out of the office covering sports assignments, others in the section are con- stantly filling in to see that necessary events are covered, obtaining help when required and performing the responsibilities of getting the sports page published. The Employer does not look to the sports editors for recommendations as to changes in wages and working con- ditions and they have no authority to recommend hiring or firing of sports reporters. Reporters have been hired for the sports section and transfers taken under consideration without the knowledge of the sports editors. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under these circumstances , we are of the opinion that the sports. editors can not be deemed to be supervisors within the meaning of the Act.12 Accordingly, we shall include them in the unit. The wire (telegraph) editors : Each of the Employer's newspapers has a wire editor whose duties are to take the news off the teletype wire, to select the news items that can be used in accordance with the space conditions for the particular issue, to write heads for the specific news item, and to make up page 1 for that issue. In each of the wire sections, there is one other man who works with the wire editor. The wire editors have no authority over the men who work with them or over any other employees of the Employer . Indeed, one of the wire editors testified that he had not asked for the other man to be assigned, to the section and did not know that a new man had been hired until' he presented himself for work. The wire editors and the men who work with them perform the same functions and the other men are not directed by the wire editors. Nor do the wire editors have authority to hire, fire, discipline employees, or make effective recommendations. We think it is obvious from this record that the wire editors are not supervisors as defined in the Act and we shall, therefore, include them in the unit. The society editor: The Employer has one society editor for both its papers. According to the testimony of one of the Employer's- officials, the society editor is in charge of the society section in much. the same way as the two sports editors are in charge of their sections. The society editor has an assistant who works with her in obtaining the society news. She was included in the unit in Case No. 5-RC-1380. In view of the similarity between the functions and duties of the, society editor and those of the sports editors whom we already have held not to be supervisors, we find that the society editor was properly included in the unit. The bureau managers: At the time of the election in Case No. 5-RC-- 1380 the Employer had three bureau managers who were included in- the unit. The bureau managers conduct the business of the Employ- er's newspapers in their respective localities. They have the authority to hire, discharge, and effectively recommend changes with respect to bureau clerical personnel. As we find that the bureau managers are supervisors within the meaning of the Act, we shall exclude them. from the unit. The clerk-reporter in the bureau office: In the election in Case No. 5-RC-1380, Mrs. Alice Marble, who is employed in the Employer's- Gloucester bureau, was included in the unit because she spent the major- portion of her time handling news items and writing news stories. It appears that Mrs. Fay Dula, who is employed at the Employer's Wil-- 12 Greensboro News Compawy, Inc, 85 NLRB 54 THE DAILY PRESS, INCORPORATED 583 liamsburg bureau, does the same type of work and performs similar functions as does Mrs. Marble. In these circumstances, as both these employees are principally news department employees, we believe that they should both be in the unit. Accordingly, we shall include Fay Dula, the clerk-reporter in the Williamsburg bureau, in the unit. The editorial writers: Each of the Employer's newspapers has an editorial writer who writes material for the editorial page of the-par- ticular paper within the ambit of policies laid down by top manage- ment. These policies must be followed by the editorial writers who exercise no discretion with regard to them. The editorial writers do not have any subordinates or people working with them. In our opin- ion as the editorial writers are not supervisors as defined in the Act, they properly belong in the news department unit in light of the func- tional relationship and similarity between their work and that of the other employees in the unit.13 Accordingly, we shall include the edi- torial writers in the unit. It appears that at the time of the election in Case No. 5-RC-1380 the Employer had a religious editor who wrote daily articles and pieces for the editorial page. This position is vacant at present. As there is no employee presently in that classification we shall make no unit determination with respect thereto.'4 The darkroom assistant: The darkroom assistant who works in the Employer's photographic section was excluded from the unit in Case No. 5-RC-1380 apparently because he was considered a temporary and casual employee, although the Employer now states that he was a regu- lar part-time employee. In any event, as the darkroom assistant is now a full-time employee, we believe that he properly belongs in the unit and shall therefore include him. [The Board ordered that the Certification of Representatives issued in Case No. 5-RC-1380 on November 30, 1953, to American Newspa- per Guild, CIO, be amended to include city editors, sports editors, wire editors, editorial writers, the darkroom assistant, and the clerk-reporter in the Williamsburg bureau of the Employer and to exclude bureau managers, and further ordered that the petition in Case No. 5-RC- 1458 be dismissed.] MEMBERS MURDOCK and PETERSON, concurring in part and dissent- ing in part : We agree with the assertion of jurisdiction here. However, as in- dicated in our separate opinions in the Breeding case," we base our concurrence upon the ground that, in accord with the 1950 plan, the Board should exercise jurisdiction over all newspaper companies 13 Arizona Tines, Inc , 85 NLRB 230 ; A. S. Abell Company, 81 NLRB 82 14 Hollow Tree Lumber Company, 98 NLRB 493, 495 15 Rheed44ng Transfer Company, 110 NLRB 493. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which hold membership in, or subscribe to, interstate news services or publish syndicated features and advertise nationally sold products. We dissent from the establishment of the new standard announced in the majority opinion in this case which states that henceforth the Board will assert jurisdiction over such newspaper companies only if the gross income of the particular enterprise amounts to $500,000 an- nually. It has been the consistent position of the Board that, be- cause newspaper companies which are members of interstate news services, etc., constitute instrumentalities and channels of commerce, a dollar volume test cannot, and should not, be applied in determining whether to take jurisdiction of them. In the 1950 plan a monetary figure test was used only in those indus- tries where there was a direct relationship and correlation between the do'lar volume of the specific enterprise, its nature, and its effect upon commerce. However, the 1950 plan manifested the Board's rec- ognition, gained from 15 years of administrative experience, that with respect to instrumentalities and channels of commerce the size of the particular enterprise is not a true or reliable index of its impact upon the flow of interstate commerce; that the nature, and not the magni- tude of these enterprises, determines their effect on commerce. There- fore, no effort was made to impose dollar volume figures because the Board was aware that where newspaper companies which constitute instrumentalities and channels of commerce are concerned "small business" and "essentially local" are not equatable terms and these companies have an impact on commerce regardless of their size. Our majority colleagues are willing to cast aside in what we consider cava- lier fashion this valuable knowledge based upon many years of ad- ministrative experience. We are not. In attempting to justify their action, our colleagues assert that we are insisting "upon a standard which would have the Board assert jurisdiction over newspaper companies without any regard, however slight, to their impact upon commerce"; and presumably would find "that the smallest newspaper in the smallest village in the nation car- rying a syndicated comic strip has a pronounced impact upon com- merce." One is thereby led to believe that we, rather than they, are advocating the application of a new standard. Of course, as we have previously indicated, quite the opposite is true. Our colleagues well know, and as we have heretofore stated, our position is not that the Board should exercise jurisdiction over all newspaper companies, but, as it did under the 1950 plan, only over those which constitute instrumentalities and channels of commerce. A further condition precedent for Board action in any case always has been that the Board have legal jurisdiction. In the past, the Board's experience has been that where a newspaper company is a member of an interstate wire service or publishes syndicated features and advertises nationally THE DAILY PRESS, INCORPORATED 585 sold products the impact of its operations upon commerce is almost in- variably not de minimis. Our colleagues, however, have chosen as their hypothetical example the highly unlikely ,and improbable situation of an employer who carries a syndicated comic strip, but whose opera- tions would doubtless be considered de minimis under the 1950 plan. One need only look at the newspaper cases which the Board has dis- missed under the 1950 standards to find the answer to the majority's baseless charge that we insist upon a standard which would have the Board take jurisdiction of newspapers without any regard to their impact on commerce.ls In view of the fact that our colleagues are establishing here a new standard to be applied to newspaper companies, it seems appropriate for us to evaluate its efficacy. Although our colleagues apparently question the propriety of our making such an appraisal by stating that the efficacy of their new standard will be found in the test of time and application and not in our "prejudgments," we fail to ascertain how our evaluation is any more a prejudgment than is their summary ap- praisal that its adoption will best effectuate the policies of the Act. In our separate opinions in Breeding we had occasion to refer to the arbitrary character of the majority's new jurisdictional plan. The instant case affords an excellent example of what we had in mind. Thus, apparently without rhyme or reason a monetary figure- $500,000 in this case-is arrived at and announced. Whence comes this figure and why $500,000 rather than $1,000.000 or $300,000 our colleagues of the majority alone know and they are not telling. For, they find it either unnecessary or inadvisable to discuss in detail where the new standard had its origin, what its purpose is, and what will be its effect upon the newspaper industry. However, they assert that in not giving detailed and documented reasons for the adoption of their new standard they are doing nothing different than their predecessors. They overlook the fact that the 1950 plan represented in large measure a codification of past Board jurisdictional decisions. In adopting its 1950 jurisdictional standards, the Board announced in eight unanimous decisions issued simultaneously with a release to the press t' that "The time has come when experience warrants the establishment and announcement of certain standards which will better clarify and define where the difficult line can best be drawn." The Board further stated that the adopted standards "reflect, in large measure, the re- sults reached in the Board's past decisions disposing of similar juris- 18 Mutual Newspaper Publishing Company, et al., 107 NLRB 642; Wave Publications, Inc, 106 NLRB 1064 ; J. Weiss Printers, 99 NLRB 993. 14 WBSR, Inc, 91 NLRB 630; W. C. King, d/b/a Local Transit Lines, 91 NLRB 623; --Tire Borden Company, 91 `NLRB "628; Stanislaus Iinplement and Hardware Company, Limited, 91 NLRB 618; Hollow Tree Lumber Company, 91 NLRB 635; Federal Dairy Co. Inc, 91 NLRB 638; Dorn's House of Miracles, Inc, 91 NLRB 632; The Rutledge Pope) Pf oducts, Inc 91 NLRB 625. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dictional issues." Under the circumstances, we believe that the public and especially the employers, employees, and labor organizations in this industry are entitled to know the answers to these questions which so directly affect their rights under our Act. In view of our col- leagues' apparent inhibitions or reticence, we shall attempt to supply what seem to us to be the only plausible answers. From information compiled for us by the Board's industrial analy- sis branch, it is clear that the $500,000 figure selected by the majority would place approximately 65 percent of the daily and 95 percent of the weekly and semiweekly newspapers in the country outside the Board's jurisdiction. It should also be noted that, in view of the fact that in 1952 over 275,000 employees worked for newspapers in the United States,18 a not inconsequential portion of the Nation's working force is affected by this limitation upon the Board's jurisdiction. Our majority colleagues state that we are thereby implying that 65 to 95 percent of the Nation's newspaper employees will be denied the protection of the Act. The only reason we can discern for our col- leagues drawing this far-fetched implication is that it affords them.a convenient vehicle for presenting OASI figures to support their state- ment that no more than 8 percent of all newspaper employees in the country will be eliminated from the Board's jurisdiction. Assuming for the moment that the critical factor in establishing a new jurisdic- tional standard was, as our colleagues apparently believe, the per- centage or number of employees who would be denied the protection of the Act, we wish to observe that (a) the OASI reports used by our colleagues are 7 years old; (b) the figure of 275,000 employees in the newspaper industry which we have referred to is at least 2 years old; and, (c) as the number of employees in this industry has increased each year, presumably, the present figure is higher than 275,000. Moreover, even if we were to accept these figures as representative of the situation today in this industry, we are not prepared to view as insignificant the fact that by applying the new standard, at least 22,000 employees in the newspaper industry would be excluded from the protection of the Act. However, we have a much more basic and fundamental reason for disagreeing with our colleagues. Thus, con- trary to their view, the critical factor in establishing a jurisdictional standard should be, as it always has been, the effect which a stoppage of an employer's operations by industrial strife would have upon commerce.19 Obviously, the number or percentage of employees in an industry which is affected by adoption of a specific jurisdictional standard affords no indication of the impact upon commerce of a ces- 'B U S Department of Commerce , Bureau of Census-Annual Survey of Manufac- turers, p 26. 11 N. L. R. B v. Jones & Laughlin Steel Co; p , 301 U . S 1; Associated Press v. N. L R. B. 301 U S. 103 ARMOUR & COMPANY 587 cation of a particular employer's operations 20 This is especially true in operations, such as here, where vital services are supplied by com- paratively limited personnel. The crucial fact in this case is that our colleagues' new standard places a major portion of the newspaper industry outside of the Board's jurisdiction, regardless of how many employees are involved, with the resultant dangers to the flow of commerce. We can offer only two possible reasons for the action taken herein by our colleagues. At best, it would seem that the adoption of a dollar volume test for newspaper companies is predicated upon an undocu- mented and, as we have already shown, an unfounded assumption that large newspapers in terms of gross receipts have a pronounced impact upon interstate commerce while smaller newspapers do not. At worst, it would appear that the sole consideration for this test as for others is an effort to restrict the Board's jurisdiction so that more of the Fed- ,eral authority to regulate labor relations is administratively reallo- cated to the State governments. In our separate opinions in Breeding, we pointed out that not only was such an objective one for congres- sional rather than Board determination, but also its successful achieve- ment was questionable because of the uncertain state of the law re- garding the legal authority of the State governments to act in areas where the Board has chosen to withdraw. In view of the foregoing, we agree to the assertion of jurisdiction ,over the instant newspaper company, not because its gross income happens to amount to $500,000 or more annually, but because, as a sub- scriber to, and member of, an interstate news service, a publisher of .syndicated features, and an advertiser of nationally sold products, it is an instrumentality and channel of commerce. We believe that the Board should continue to take jurisdiction of all such newspaper com- panies, and dissent from the adoption of an arbitrary standard which places 65 percent of the daily newspapers outside the Board's juris- diction. 20 We think it appropriate to note that our colleagues ' implied premise , that the efficacy of a jurisdictional standard is determined by the number of employees in an industry included or excluded thereby, disregards the fact that Congress in enacting the statute specifically rejected the application of such a criterion. ARMOUR & COMPANY and CHAUFFEURS, TEAMSTERS , & HELPERS LOCAL No. 47, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN & HELPERS , AFL, PETITIONER. Cases Nos. 16-RC- 1501and 16-RC-1505. October p26,1954. Decision, Order, and Direction of Election Upon petitions duly filed under Section 9 (c) of the Act and there- after consolidated, a hearing was held before William H. Renkel, Jr., 110 NLRB No. 80