Dow Jones & Co., Inc.

DOW JONES & COMPANY, INC. 421 constituting interference , restraint, and coercion within the meaning of Section 8(a)(1) of the Act. 3. Respondents Central States, Local 802, and Agnes Smith violated Section 8(b)(1)(A) of the Act by the following conduct which constitutes restraint and coercion within the meaning of said section: (a) By Smith's statements to Mills and Bailey predicting the discharge of Secrist, Home, and Ballman , it was threatened that said Respondents would cause the dis- charge of employees who engaged in any protected activity which might be considered by said Respondents to be contrary to the interests of the Clothing Workers. (b) By Smith's statements to Mills and Bailey that if the employees did not "quiet down" they would be paying dues without getting union protection, it was threatened that said Respondents would withhold fair representation from any employees in the bargaining unit who engaged in an activity which said Respondents might consider contrary to the interests of the Clothing Workers. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section ,2(6) and (7) of the Act. 5. Maxam did not commit any violation of Section 8 (a) (3) of the Act as alleged in the complaint 3s 6. There was no violation of Section 8(b)(2) of the Act, as alleged in the com- plaint, by Central States, Local 802, or Agnes Smith. 7. None of the Respondents committed any of the violations of Section 8(a)( I) or Section 8(b) (1) (A) of the Act alleged in the complaint other than those found hereinabove in paragraphs 1, 2, and 3 of these conclusions of law. [Recommended Order omitted from publication.] 31 This does not include a finding with respect to its conduct in demoting Bailey. As indicated above, I found it unnecessary to pass upon this allegation of a violation of said section as to Bailey. Dow Jones & Company, Inc. and American Newspaper Guild, Local 3, AFL-CIO and The Independent Association of Pub- lishers Employees, Inc., Petitioners. Cases Nos. 1-RC-6855 and 1-RC-6922. April 30, 1963 DECISION, ORDER, AND DIRECTION OF ELECTION Upon petitions i duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Thomas M. Harvey, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 2 Upon the entire record in these cases the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. i The Petitioner in Case No . 1-RC-6855, American Newspaper Guild, Local 3, AFL-CIO, herein referred to as the NY Guild , and the Petitioner in Case No 1-RC-6922, The Independent Association of Publishers Employees , Inc., herein referred to as IAPE , inter- vened with respect to each other 's petitions on the basis of a contract or a card showing ; in addition , 'Springfield Typographical Union Local No. 216, International Typographical Union , AFL-CIO, herein referred to as the Springfield ITU, and the Chicago Newspaper Guild, herein referred to as the Chicago Guild, intervened on the basis of a contract interest, but neither of these latter unions seeks to participate in an election . The petition in Case No . 1-RC-6922 was filed after the hearing began, but the cases were consolidated without objection by any of the parties. 2 The requests of the Employer and IAPE for oral argument are hereby denied as the record, including the exceptions and briefs , adequately sets forth the issues and the posi- tions of the parties 142 NLRB No. 44. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organizations involved claim to represent employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2 (6) and (7) of the Act.' 4. The NY Guild seeks a unit of the approximately 250 non- mechanical employees at the Employer's Chicopee Falls, Massachu- setts, plant. IAPE seeks a nationwide unit of the approximately 1,300 nonmechanical employees at the Employer's 8 plants and ap- proximately 36 news bureaus and advertising and circulation sales offices in the United States; or, alternatively, such a unit excluding the editorial and news department employees at the Chicago plant who are represented by the Chicago Guild. The Employer maintained at the hearing that either of the alternative units sought by IAPE would be appropriate, but contends in its brief that the first alterna- tive is the only appropriate unit. (a) The Employer's Operations The Employer is engaged in the publication and sale of The Wall Street Journal, a daily newspaper, The National Observer, a weekly newspaper, and Barron's Financial and Business Weekly, a weekly financial newspaper, and in the operation of the Dow Jones News Service, a news wire service. It has 8 printing plants and about 36 news bureaus and offices throughout the country. Its plants are lo- cated in New York City; San Francisco and Riverside, California; Dallas, Texas; Chicago, Illinois; Washington, D.C.; Cleveland, Ohio; and Chicopee Falls, Massachusetts. The Journal is published at seven of these plants; the Observer at Washington, D.C., Chicago, and Chicopee Falls; and Barron's at Chicopee Falls.' The contents of the Journal and Observer, wherever published, are almost completely uniform due to the Employer's communications facilities, which in- clude a unique perforated tape transmission system. The Employer's operations are administered by an executive commit- tee consisting of approximately seven officials, as well as by national and regional department heads and local officials. Labor relations policies in general are determined by various members of the execu- tive committee. Bargaining for nonmechanical employees is handled 3 The Chicago Guild interposed its contract as a bar to one of the alternative units sought by IAPE In view of the disposition of this case, we find it unnecessary to pass upon this contract-bar contention we likewise find it unnecessary to pass upon the asser- tion of the Employer and IAPE that they would waive their current contract, which was effective to January 31, 1963, only If the Board finds appropriate one of the two alternative units requested by IA11E. 6 Subsequent to the opening of the Chicopee Falls plant in 1960, publication of Barron's was transferred from the plant of a subsidiary company in Boston to Chicopee Falls, and the Employer's national circulation service department headquarters was transferred from New York to Chicopee Falls There is also a central circulation service department for the Pacific Coast maintained in San Francisco DOW JONES & COMPANY, INC. 423 by a member of this committee, who may consult another committee member and various national department heads; bargaining for me- chanical employees is handled by one of the national department heads; bargaining with craft unions is to some extent handled locally. Hiring for a particular location may be done locally, regionally, or in New York City, with all local and regional hires subject to approval in New York. With some exceptions, payrolls for mechanical em- ployees are handled locally while those for nonmechanical employees are handled in New York. Vacations, holidays, profit-sharing and retirement programs, and similar benefits are uniform for all non- mechanical employees. (b) Bargaining history for nonmechanical employees a In 1938 a predecessor of IAPE was certified by the Board for a stipulated unit of nonmechanical employees at the New York plant. Thereafter, until December 31, 1953, this unit was covered by a series of contracts between the Employer and IAPE or its predecessor. In addition, during the early 1950's, these parties executed separate con- tracts covering (1) the "commercial" departments at the Chicago plant; 6 and (2) seven news bureaus. Moreover, the subsidiary com- pany which published Barron's contracted separately with IAPE? Since January 1954 the Employer and IAPE have executed multi- plant contracts containing substantially identical terms for all the locations which were covered, but these contracts did not cover all the existing operations; thus one unit not covered was represented by another union and the remaining uncovered operations were unrep- resented. Further, the contracts covered varying locations depending on IAPE's demonstration of majority representation at each location. Thus, the first multiplant contract, effective from January 1, 1954, until February 1, 1955, covered the New York plant, the Chicago commercial departments, and the news bureaus, previously covered by separate contracts, as well as the San Francisco and Dallas plants. The Dallas plant was dropped from coverage in the contract effective February 1, 1955, to January 31, 1957, and has not been covered since that time; the Washington, D.C., operation, previously covered as a news bureau, became a plant in 1954 and was included in the 1955-57 c The Employer has separate single-plant collective -bargaining relationships with various ITU locals and the Mailers Union covering composing and mailroom employees . It had an agreement with the Springfield ITU, effective until April 30, 1962, covering the composing and mailroom employees at Chicopee Falls 6In 1951 the Board (96 NLRB 993 , 997) found that either a plantwide unit or separate units of ( a) editorial and news department employees and (b) employees in the commer- cial departments might be appropriate at the Employer's Chicago plant. The employees voted for different unions and, since that time, unit ( a) has been represented by the Chicago Guild while unit (b) has been represented by IAPE. 7 This company was merged with the Employer in October 1961 . Since that time, the Barron's employees at New York have been included in the IAPE contract which covers that location while those at Chicopee Falls have been unrepresented. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract on'that basis. No changes were made in coverage in the next contract; but, in the contract effective from February 1, 1959 to Jan- uary 31, 1961, the six news bureaus which had remained in the con- tract unit after Washington, D.C., became a plant were dropped from coverage. The most recent contract, effective February 1, 1961, to January 31, 1963, at the time of its execution covered only the New York, San Francisco, and Washington, D.C., plants, and the Chicago commercial departments; but, early in 1962, the Cleveland plant, which had been established in 1960, and the Boston office were added. The Chicopee Falls plant, which had also been established in 1960, was not included. Thus, the IAPE contract at the time of the hearing covered 5 of the 7 currently operating plant locations 8 and one of the approximately 36 new bureaus and offices. (c) Scope of unit As indicated above, there is no bargaining history for the non- mechanical employees at Chicopee Falls whom the NY Guild seeks to represent as a separate unit. Although the mailroom and com- posingroom employees at Chicopee Falls are represented on a single- plant basis, TAPE and the Employer contend that the nonmechanical employees cannot similarly be represented, and that only a nation- wide unit is appropriate in view of the integration of the Employer's operations and the history of bargaining. With respect to these contentions, it is significant that the Employer and IAPE have not bargained on a nationwide basis, but only for vary- ing numbers of locations where IAPE was able from time to time to demonstrate majority status. After a bargaining history of approxi- mately 23 years, their most recent contract at the time of the hearing covered only 5 of the 7 operating plant locations and only one of the approximately 36 news bureaus and offices. This history demonstrates that the Employer and IAPE have consistently regarded each sep- arate facility as a separate unit not only for purposes of determining initial representation, but also for determining continued representa- tion. It is thus clear that at no time prior to this proceeding have IAPE and the Employer considered that the Employer's plants, bu- reaus, and offices were merged into a nationwide unit, or that their operations were so integrated that such merger was necessary for effec- tive bargaining. Therefore, while they executed multiplant contracts for convenience in bargaining, it is apparent that they evidenced no clear intent to merge the Employer's various operations into a single nationwide unit.' Under these circumstances, and as the bargaining history demon- strates the feasibility of single-plant units despite the Employer's 8 A plant was being established in Riverside, California, at the time of the hearing. e Accord : American Broadcasting Company, Inc,, 114 NLRB 7; National Broadcasting Company, Inc., 114 NLRB 1, 4. DOW JONES & COMPANY, INC. 425 high degree of integration, we find that the evidence does not fore- close the single-plant unit sought by the NY Guild. Accordingly, we find that the nonmechanical employees at the Chicopee Falls plant are entitled to separate representation. As IAPE seeks an election only in a nationwide unit, whose appropriateness has not been established, we shall dismiss its petition. IAPE contends that, in the event the Board finds that the non- mechanical employees at Chicopee Falls are entitled to separate rep- resentation, it should establish separate units of (1) employees in the news department, and (2) all other nonmechanical employees, on the grounds that employees in the news department have little communica- tion with employees in the circulation service department, who are in the proposd unit, and also that the nonmechanical employees at Chicago are so divided. The NY Guild opposes this division, and the Employer has not taken a position on this quesition. We find no warrant for dividing the nonmechanical employees at Chicopee Falls into two units. The record indicates that the work of the employees in the news department is related to that of other em- ployees in the unit. Moreover, in the absence of a bargaining history of separate units of nonmechanical employees, and where a union seeks such employees in a single unit, it is Board policy in the newspaper in- dustry to include all the nonmechanical employees in a single unit.'° Accordingly, we find appropriate a unit of all the nonmechanical em- ployees in the advertising production, business, personnel, production, building services, circulation service, news, and mechanical service or ticker operation departments at the Employer's Chicopee Falls plant. (d) Composition of Unit There remains for consideration the placement of certain disputed classifications. Wire filers : There are two employees classified as wire filers who, work full-time in this capacity, and one, Thomas, classified as a news assistant, who spends about half his time as a wire filer. Although the Springfield ITU does not claim that these employees are covered by its contract for mailing and composingroom employees at Chicopee Falls and does not seek to represent them in this proceeding, it con- tends that their tasks are akin to those of composingroom employees and that they should, therefore, be excluded as mechanical employees. The NY Guild, IAPE, and the Employer argue that these employees are nonmechanical and properly includable in the unit. The wire filers receive and monitor copy which comes over data-fax or facsimile machines, determine the order in which it is to be proc- essed, and distribute it to the printers. They also monitor incom- ing perforated tape coming over electronic transmission machines, 10 See Lowell Sun Publishing Company, 132 NLRB 1168, 1169. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and designate the order in which it is to be processed . In addition, they operate and monitor Associated Press wirephoto machines , operate tape transmitters which dispatch material to other printing plants, and determine the order of priority in which such material is to be dispatched, are responsible for the continuous operation of the news wire circuits, and prepare the daily Dow Jones average charts by applying a mathematical formula to figures supplies by the research and development department. The record shows that the wire filers are administratively within the confines of the news department and are supervised by the super- visor of that department ; that they do not work in the composing- room area; that their tasks require the exericse of a certain amount of discretion involving news priority , and the performance of mathe- matical computations which are not performed by composingroom em- ployees; that they are not covered by the Springfield ITU contract covering composingroom employees at Chicopee Falls ; that wire filers at the Employer's other plants are generally included in contracts covering news department employees , and are not covered by ITU con- tracts; and that the Springfield ITU does not seek to represent them in this proceeding. Under all the circumstances, we shall include these wire filers in the unit. Stencil clerks : There are approximately 10 employees classified as stencil clerks in the circulation service department." Although the Springfield ITU does not claim that these employees are covered by its contract for mailing and composingroom work at Chicopee Falls and does not seek to represent them in this proceeding, it contends they should be excluded as mechanical employees engaged in mailroom work. The NY Guild, IAPE, and the Employer argue that these individuals perform clerical work preliminary to mailroom work and are thus properly included in the unit. The basic function of the stencil clerks is to maintain files of stencil plates. In addition, they operate : a machine which embosses stencil plates by hand; the Dow Jones strip lister which runs off subscription lists; a machine that creates bag tags, which employees in the mail- room subsequently insert into mailbags ; this same machine with a special attachment for running off news dealer rolls; and two machines that affix names and addresses to envelopes, which employees in the mailroom subsequently use for mailing out Barron's. During the negotiations of the Springfield ITU contract, the parties agreed to the exclusion of the stencil clerks. As the stencil clerks do not work in the mailroom , are engaged pri- marily in clerical work preliminary to mailroom work , were specifically excluded from the Springfield ITU contract, and the Springfield ITU ' For the reasons set forth hereinafter , two of these clerks, Packer and Pellerano, who are senior section chiefs , are excluded from the unit as supervisors. DOW JONES & COMPANY, INC. 427 does not seek to represent them in this proceeding, we shall include them in the unit.'2 Section chiefs: There are approximately 12 senior section chiefs whom IAPL would include, whereas the Employer and the NY Guild would exclude them as superivsors. As they responsibly direct the work of employees in their sections, hire employees subject to approval by the circulation service manager and the New York office, and effec- tively recommend discharge and promotion, we find that they are supervisors within the meaning of the Act, and they are, therefore, excluded from the unit. Personnel assistant: The NY Guild would include Foster, the per- sonnel assistant, whereas the Employer would exclude her on the- grounds that she has authority to exercise "judgment in areas vitally important to the hiring process" and that she is closely allied to man- agement. IAPE contended at the hearing that she should be excluded because personnel assistants at the New York plant are excluded from the IAPE contract. Foster, who reports to the personnel manager in New York interviews, tests, and screens applicants for hire at Chicopee Falls, but does not hire anyone herself. She maintains the personnel records of the nonmechanical employees at Chicopee Falls, but has no- authority to effectuate promotions, transfers, discharges, or to grant leaves of absence, and she has no one working under her supervision. We find that she is neither a supervisor nor a managerial employee, and, accordingly, we shall include her in the unit.13 News production editor: The NY Guild would include Polk, the news production editor of the Journal, whereas the Employer would exclude him as a supervisor. Under the supervision of Farrell, the assistant managing editor, who supervises 16 individuals in the news department of the Journal and Barron's, Polk is in charge of 8 em- ployees and has responsibility for producing certain editions of the Journal only. Farrell and Polk work different but overlapping shifts, with Polk on duty 41/2 hours 4 evenings a week, and on Sundays, when. Farrell is not on duty. However, Polk's duties consist mainly of sche- duling hours for the news assistants, who perform fairly standardized tasks such as reading proof, and of making routine assignments to the other employees. If an employee does not perform his work properly, Polk's authority is limited to instructing him in proper work methods. Polk has au- thority to grant news assistants a day off or to allow them to exchange shifts, but he advises Farrell when he does so. Farrell handles all hir- 12 The parties agreed , and we find , that, when the stencil clerks operate the machines which address Barron's envelopes , they are engaged in mailroom work. At the time of the hearing, this operation was scheduled to be discontinued shortly by the introduction of new machinery. If this operation is still in existence , the stencil clerks shall be excluded from the unit with regard to that portion of their work and time devoted to it. is The Budd Company, Automotive Division, Gary Plant, 136 NLRB 1153, footnote 3; Coppery eid Steel Company, 102 NLRB 1229, 1230 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing and does not look to Polk for recommendations thereon, and he made an independent investigation on the one occasion when Polk recommended a discharge. We find that Polk has no authority to hire or discharge or effectively to recommend changes in employee status, or to discipline employees. Moreover, contrary to our dissenting col- league, we find that Polk does not responsibly direct employees within the meaning of the Act. Accordingly, we shall include him in the unit.14 Advertising production manager: The NY Guild and IAPE would include Carroll, the advertising production manager for Barron's," whereas the Employer would exclude her as a supervisor and man- agerial employee. Carroll is in charge of the placement of all ad- vertising in Barron's, and reports directly to an advertising official in New York. As she responsibly directs the work of an assistant whom she hired and whom she has authority to discharge, we shall exclude her from the unit. Technician: The NY Guild would include Pease, a technician, whereas the Employer would exclude him as a supervisor. Pease is responsible for the maintenance of various electronic and mechanical equipment, such as the Datafax machines and the tape transmitters. He reports by telephone and mail to his direct superior, Coakley, the national service manager, who is based in New York. About 5 months after Pease was employed, Coakley, without any recommendation from Pease, decided to hire an apprentice inspector to assist Pease. Coakley and Pease together interviewed various individuals and se- lected Whitcomb to serve in that position. Pease directs Whitcomb's work, instructs him, and submits written reports to Coakley every 6 months on his progress, but has no authority to grant merit raises to him, or to discipline or discharge him. We find, based on all the evidence, that the relationship between Pease and Whitcomb is that of a more highly skilled to a less skilled employee, and that Pease is 14 Contrary to Members Leedom and Fanning , Chairman McCulloch would find that News Production Editor Polk is a supervisor and exclude him as such . Polk works from 3:30 p.m to 30 •30 p in He also works on Sunday Harrell, Polk's superior , normally works from 9 30 a in to 6 p in. He does not work on Sunday . Polk is in complete charge of the news department when Farrell is not there, which is more than half of Polk's working time. Polk has discretion in the placing of nonmajor news articles in the Journal, can delay a press run , and stop one after it has begun He has eight subordinates whose work he directs . He assigns them to their work, schedules their work hours, and repri- mands them for improper work performance. He has authority to grant employees time off and to approve requested swapping of job hours He can recommend discharge of subordinates . In the one case where he made such a recommendation , the individual was discharged, although Farrell is also made an investigation of the request. The Chairman believes that the above facts indicate that Polk's exercise of authority with respect to subordinates is more than routine in nature , in fact is supervisory within the statutory definition He would also point out that the position of news production editor is more responsible than that of advertising production manager who, all Board members agree, is a supervisor. 15 Higgins , the advertising production manager for the Journal, was excluded as a super- visor by stipulation of the parties. DOW JONES & COMPANY, INC. 429 not a supervisor within the meaning of the Act. We shall therefore include him in the unit. Building superintendent: The NY Guild would include Collette, the building superintendent, whereas the Employer would exclude him as a supervisor. Although Collette spends about half his time doing maintenance work, he also directs the work of three or four building department employees, including the matron, whom he hired. More- over, he has authority to discipline these employees and to grant them time off. Accordingly, we find that he is a supervisor, and shall exclude him from the unit. Part-time telephone operators: There are two part-time telephone operators whom the NY Guild and the Employer would include, whereas IAPE took no position. These operators are paid on an hourly basis and do not receive fringe benefits. However, as one works from 3 to 10 p.m. every Sunday and the other works 5 days a week from 5 to 8 p.m., we find that they are regular part-time employees and shall include them in the unit. Accordingly, upon the entire record, we find that the following employees of the Employer at its Chicopee Falls, Massachusetts, plant, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All nonmechanical employees in the advertising production, busi- ness, personnel, production, building services, circulation service, news, and mechanical service or ticker operation departments, includ- ing wire filers, stencil clerks, junior section chiefs, the personnel as- sistant, the news production editor, the technician, part-time telephone operators, and all other regular part-time employees, but excluding machinists, stereotypers, all employees in the composing, press, and delivery mail rooms, confidential, managerial, and professional em- ployees, guards, senior section chiefs, the building superintendent, the advertising production manager for Barron's and all other supervisors as defined in the Act. 16 [The Board dismissed the petition filed in Case No. 1-RC-6922.] [Text of Direction of Election omitted from publication.] MEMBERS RODGERS and BROWN took no part in the consideration of the above Decision, Order, and Direction of Election. 39 The parties stipulated to the inclusion of junior section chiefs, and to the exclusion as supervisors of the circulation service manager , his assistants, and secretary; the assistant managing editor ; the advertising production manager for the Journal ; the production man- ager and his assistant ; the regional business office agent ; the guard and night cleaning supervisor ; and the supervisor, night crew, and circulation service. They also stipulated to the exclusion of the secretary to the assistant managing editor as a confidential em- ployee, and to that of a trainee for the position of assistant circulation service manager.