Philadelphia Inquirer Company

In the Matter of PHILADELPHIA INQUIRER COMPANY and PHILA- DELPHIA INSERTERS AND INSIDE DELIVERY WORKERS ASSOCIATION (UNAFFILIATED) In the Matter of PHILADELPHIA RECORD COMPANY and PHILADELPHIA INSERTERS AND INSIDE DELIVERY WORKERS ASSOCIATION Cases Nos. R-1385 and R-1386, respectively.Decided August 18,1939 Newspaper Publishing Industry-Investigation of Representatives : petition for, dismissed, where no question has arisen concerning representation of em- ployees in an appropriate unit ; petitioner requested units composed of inserters employed on a piece-work basis in inside delivery departments ; functional interdependence of all employees in inside delivery departments, similarity of working conditions , collective bargaining custom of the industry in other cities, jurisdictional claims of the competing unions held to make requested unit inap- propriate ; previous separate collective bargaining of inserters not controlling- Order: dismissing petition. Mr. Samuel G. Zack, Mr. Geoffrey J. Cunniff, and Mr. Weldon P. Monson, for the Board. Murdock, Paxson, Kalish d Green, by Mr. F. W. Tompkins and Mr. Frank B. Murdock, of Philadelphia, Pa., for the Philadelphia Inquirer Company. Kraus and Weyl, by Mr. Edward S. Weyl and Mr. Jerome L. Marko- witz, of Philadelphia, Pa., for the Philadelphia Record Company. Mr. Harry A. Demar, of Philadelphia, Pa., for the Association. Syme & Simons, by Mr. Benjamin R. Simons, of Philadelphia, Pa., for Local No. 14. Mr. Thomas J. Martin, of Cleveland, Ohio, for the Mailers' Trade District Union. Mr. N. Barn Miller, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On May 6 and May 16, 1938, Philadelphia Inserters and Inside Delivery Workers Association, herein called the Association, filed with the Regional Director for the Fourth Region (Philadelphia, 14 N. L. R. B., No. 58. 795 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pennsylvania) a petition and amended petition , respectively , alleging that a question affecting commerce had arisen concerning the repre- sontation ° of employees of the Philadelphia Inquirer Company, Phila- delphia, Pennsylvania , herein called the Inquirer, and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 .Stat. 449, herein called the Act. On January 25, 1939, the Association filed with the Regional Director for the Fourth Region a petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of the Philadelphia Record Company, Philadelphia, Pennsylvania , herein called the Record, and requesting an investiga- tion and certification of representatives pursuant to Section 9 (c) of the Act. On March 3, 1939, the National Labor Relations Board, herein called the Board , acting pursuant to Article III, Section 10 (c) (2 ), of National Labor Relations Board Rules and Regula- tions-Series 1, as amended, ordered the two cases consolidated, and pursuant to Section 9 (c) of the Act and Article III, Section 3, of the said Rules and Regulations, ordered an investigation and author- ized the Regional Director to conduct it and to provide for an appro- priate hearing upon due notice . On March 23 , 1939, the Association filed a second amended petition alleging that a question affecting commerce had arisen concerning the representation of employees of the Inquirer. On March 24, 1939, the Regional Director issued a notice of hear- ing, and subsequently issued notices of postponements of the hearing, copies of all of which were duly served upon the Record , upon the Inquirer, upon the Association and upon Philadelphia Mailers' Union, Local No. 14, herein called Local No. 14, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hearing was held from May 11 to May 19, 1939, at Philadelphia , Pennsylvania, before Mapes Davidson, the Trial Examiner duly designated by the Board. The Board , the Rec- ord, the Inquirer, the Association , and Local No. 14 were represented by counsel and participated in the hearing . Full opportunity to be heard, to examine and to cross -examine witnesses , and to introduce evidence bearing on the issues was afforded all parties . During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the close of the hearing it was agreed that the record should be held open to receive certain exhibits including a letter from the Inquirer to Local No. 14 with reference to a contract dated May 2, 1938. This letter was not forthcoming at once and on May 26, 1939, counsel for the Association filed a motion with the Board to reopen PHILADELPHIA INQUIRER COMPANY 797 the hearing for further testimony. Subsequently the letter was pro- duced, placed in the record, and the request to reopen the hearing has been withdrawn. Briefs have been filed by the Association and Local No. 14 which have been given due consideration by the Board. Upon the entire record' in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES 1 A. The Philadelphia Inquirer Company The Philadelphia Inquirer Company is a Delaware corporation with its principal place of business in Philadelphia, Pennsylvania. It publishes the Philadelphia Inquirer, a daily and Sunday news- paper. At its Philadelphia plant it also prints a magazine known as "Click," which is shipped to the Cuneo Press in Chicago, Illinois, for binding, and then delivered to the Regal Press in Chicago. The chief raw materials used by the Inquirer are newsprint, ink, and metal, 92 per cent of which are shipped into Pennsylvania from other States. The company is a member of the Associated Press, a corporation engaged in the collection and dissemination of news throughout the United States, and causes to be transmitted in inter- state commerce from and through the various States of the United States to its Philadelphia plant news items and reports from the said Associated Press. The daily circulation of the Inquirer is approximately 360,000, the Sunday circulation approximately 1,000,000. Fourteen per cent of the daily and twenty-seven per cent of the Sunday edition are sold and transported to States other than Pennsylvania. Approximately 1,850 persons are employed by the Inquirer, 83 of whom are inserters in the inside delivery department. B. The Philadelphia Record Company The Philadelphia Record Company is a Pennsylvania corporation engaged in the publication of the Philadelphia Record, a daily and Sunday newspaper. The chief raw materials used are newsprint, ink, and metal, 85 per cent of which are shipped into Pennsylvania from other States. The Record is a member of the Associated Press and receives the same type of news service therefrom that the Inquirer receives. The daily circulation of the Record is 224,126 and the Sun- day circulation 355,313. Nineteen per cent of the circulation is sold and transported into other States of the United States and to foreign countries. 1 These findings are based on stipulations of fact. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Approximately 951 employees are on the Record pay roll, 69 of whom are employed as inserters in the inside delivery department. II. THE ORGANIZATIONS INVOLVED Philadelphia Inserters and Inside Delivery Workers Association is an unaffiliated labor organization, admitting to membership all inserters and other inside delivery room employees of the Inquirer and the Record. Philadelphia Mailers' Union, Local No. 14, is a labor organization, subordinate to the Mailers' Trade District Union which is a subdi- vision of the International Typographical Union, an affiliate of the American Federation of Labor. All inside delivery department em- ployees of the Inquirer and the Record, including inserters, are eligible for membership in Local No. 14. III. THE APPROPRIATE UNIT The Association contends that the inserters employed in the inside delivery departments of the Inquirer and the Record who are paid on a piece-work basis constitute appropriate units at their respective plants for the purposes of collective bargaining. Local No. 14 opposes this contention and claims the right to bargain for all employees of the inside delivery department at each plant including the inserters paid on a piece-work basis. The inside delivery departments handle all work done on the news- papers from the time they leave the presses until they are loaded for delivery to outside agents. This work includes inserting, labeling, wrapping, tying, stamping, carrying, and loading. Employees in these departments fall roughly into three classes : regular mailers, extra or Saturday night mailing employees (usually referred to as permit men 2), and inserters. At the Inquirer there are approximately 118 regular mailers, 83 inserters, and 71 permit,men ; at the Record, 25 regular mailers, 69 inserters, and 35 permit men. The Inquirer and the Record publish daily and Sunday editions. The Sunday edition of each newspaper is composed of a number of sections such as comics, rotogravure, novel, advertisement, and news. Occasionally, the dailies carry extra sections. These sections are printed separately, at intervals beginning about 10 days before the date of issue. It is the duty of the inserters to put together or "stuff" 2 Permit men are so called because the Philadelphia Mailers' Union , Local No. 14, has issued them permit cards, allowing them to work in plants with which it has closed or preferential shop contracts but not giving them full-fledged membership in the union. Permit men pay monthly dues to the union, but have no vote . They are entitled to employment in a closed shop only after all regular members of Local No. 14 have received employment. PHILADELPHIA INQUIRER COMPANY 799 the various sections into a complete newspaper. A large part of the inserting or "stuffing" is done on Saturday night in preparation for the distribution of the regular Sunday morning editions. Regular mailers do some inserting especially during the week, but the larger part is done by employees engaged solely for that purpose and paid on a piece-work basis. The papers are handled first by the inserters and then turned over to the mailers for labeling, wrapping, and bundling. All of this work is done in one room at both the Inquirer and the Record and under the general supervision of a single inside delivery department foreman at each plant. The chief circumstances distinguishing the inserters from all other employees in the inside delivery departments are the method of wage payment and the hours of employment. The inserters are paid on a piece-work basis; all other employees-regular and extra-are paid on an hourly basis. At the Record, inserters put in 18 to 28 hours per week, working on the Sunday edition during the week at their convenience but required to be on hand Saturday night for the completion of the regular Sun- day morning edition. At the Inquirer, the inserters work about 16 hours per week, all of it on Saturday morning, Saturday night, and Sunday morning. In contrast, the regular mailers work 8 hours per day and 5 days per week; extra mailers and other permit men about 8 to 10 hours on Saturday night. At the Inquirer the inserters maintained a beneficial association for a number of years which had bargained with the management in regard to rates of pay and working conditions on several occasions prior to 1936. Local No. 14 began to organize the mailers at the Inquirer in 1936. At that time Local No. 14 offered the inserters the status of permit men in its organization, but apparently refused them full-fledged membership because they were part-time workers. This was unsatisfactory to the inserters who continued to have an organi- zation of their own. Meanwhile Local No. 14 negotiated an oral closed-shop agreement with the Inquirer, running from November 1936 to May 1938. This agreement gave the Local jurisdiction over all work in the inside delivery department, including inserting, which is in accord with the extent of jurisdiction asserted by the Inter- national Typographical Union and more particularly by its subdivi- sion, Mailers' Trade District Union, which chartered Local No. 14. However, the agreement-the terms of which were recorded in writ- ing-did not contain any. provisions governing wages or working conditions of inserters or of permit men. Subsequently Local No. 14 bargained with the Inquirer on behalf of the Saturday night permit men, and has continued to do so from time to time. But it is not clear that it has done so for the inserters. In March 1937 the in- serters, bargaining as the Philadelphia Inquirer Inserters of the 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Philadelphia Mailers Union No. 14, and assisted by members of Local No. 14, secured an oral agreement with the Inquirer running to May 2, 1938, which contained a preferential employment clause in favor of the inserters' organization. Witnesses for the Association insist that the inserters were never a part of Local No. 14, but that the relation was a kind of "gentlemen's agreement" for purposes of mutual assist- ance. There is evidence which indicates that the Inquirer believed the inserters had somehow become associated with Local No. 14 and that the agreement of March 1937 covering inserters was made by way of fulfillment of the earlier agreement with Local No. 14. What- ever the connection, it was formally severed by notice from the Associ- ation to Local No. 14 in March 1938. The Association then undertook independent negotiations with the Inquirer for renewal of the agree- ment expiring May 2, 1938. The Inquirer refused, and signed a closed-shop contract with Local No. 14, dated May 2, 1938, giving it jurisdiction over inserters. There is a dispute. as, to whether the,con- tract was executed on May 2, 1.938, or at a later date subsequent to the filing of the petition. However, the parties agreed to maintain the status quo until the Board should determine whether the inserters were entitled to a separate unit for bargaining purposes. At the Record Local No. 14 began to organize the employees of the, inside delivery department in 1933. An oral agreement was obtained from the Record in May 1935, giving Local No. 14 a preferential-shop contract for work "appertaining to all mail, baggage, and express deliveries." Inserting work was not specifically mentioned. As a reason for this omission one of the witnesses explained that during the negotiations the Record had stated its inability to pay the Mailers' Union wage scale to inserters. Local No. 14• thereupon decided not to insist on inclusion of inserters for a period of 1 year. Since that time, however, it has frequently claimed that the inserters should be subject to its jurisdiction. Meanwhile the inserters formed their own organization and in August 1935 negotiated a signed contract with the Record, which gave their organization exclusive jurisdiction of inserting where no other mailing work was involved. This contract was renewed, with modifications, each year until October 1938 when the Record refused to sign a contract but agreed orally to the same terms, provided the Board should find that the inserters constitute an appropriate unit. During the years the inserters were negotiating for themselves Local No. 14 asserted its jurisdiction over the extra or Saturday night employees in the inside delivery, department and has bargained with the Record for them, at the same time requiring them to become permit men. The separation for collective bargaining purposes of the inserters and other employees in the inside- delivery rooms of the Inquirer and the Record is apparently unique in newspaper labor organization. PHILADELPHIA INQUIRER COMPANY 801 According to testimony presented at the hearing, in other cities where locals of the Mailers' Trade District Union have been estab- lished, these locals have bargained for all employees in the depart- ment. In many places the inserters are members of the mailers' locals. However, the inserters insist,that in Philadelphia they were expressly denied full-fledged membership in Local No. 14 at all times prior to the filing by the Association of its petitions in the present proceeding, and that the most they had been offered by Local No. 14 prior to the present controversy was a permit status. Nonethe- less, of approximately 150 Inquirer and Record inserters some 20 to 25 belong to Local No. 14 and full membership is now declared to be open to all inserters. Moreover, the constitution of the Mailers' Trade District Union expressly includes inserters within its jurisdiction. The agreements made by Local No. 14 with the Inquirer have recited its jurisdiction over the inserters, and it has never been permanently surrendered at either plant. These facts indicate that in general the employees of inside delivery departments organize and bargain as a single group. In fact the Association's constitution provides for admission to membership of all employees in the inside delivery departments of Philadelphia newspapers and publishing houses including the Inquirer and the Record, although the Association's president testified his organization is interested in none except inserters. The first amended petition filed by the As- sociation on behalf of the Inquirer inserters sought a unit composed of all employees in the department. Only in a recent second amended petition was the Board requested to establish the inserters as a sepa- rate unit. At the hearing the president of the Association admitted that the inserters would like to join the mailers if their points of disagreement can be eliminated. But he indicated that the inserters fear inclusion in the larger unit would mean, (1) loss of their pre- viously established seniority rights, (2) lower wages because of a bylaw of the International Typographical Union (which 'governs Local No. 14) rejecting contracts providing for wage payment on a piece-work basis after January 1, 1941, (3) high initiation fees and monthly dues which will practically prohibit their becoming full-fledged members, with the consequence that they will have to become permit men without any voice or vote in matters concerning their own welfare, and (4) that under no circumstances will a group of inserters known as black and white inserters be accorded any other status than that of permit men. All efforts by the Association and Local No. 14 to reach a mutually satisfactory agreement on these points have failed. 0 Yet the functional interdependence of inserters and mailers, the fact that they work in the same physical surroundings, the custom of the Mailers' Trade District Union to bargain for all employees in 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inside delivery departments of newspapers in other cities, the refusal of Local No. 14 to surrender permanently its asserted jurisdiction over inserters, and the constitution of the inserters' Association, ex- tending its membership to all employees of inside delivery depart- ments, all point to the inappropriateness of a separate unit composed of inserters. Nor do the separate collective bargaining negotiations carried on by the inserters under the circumstances of this case show conclusively that such a unit is appropriate.a We are therefore of the opinion that units composed solely of the inserters employed in the inside delivery departments of the In- quirer and the Record, respectively, who are paid on a piece-work basis, are not appropriate for the purposes of collective bargaining.4 IV. THE QUESTION CONCERNING REPRESENTATION Since, as stated in Section III, we are unable to find an appropriate unit within the scope of that alleged in the petition filed in this case, we find that no question has arisen concerning representation of employees of the Inquirer and the Record in appropriate bargain- ing units. It therefore becomes unnecessary to determine whether the contract, dated May 2, 1938, between the Inquirer and Local No. 14 is a bar to establishment by the Board of a unit at the Inquirer composed only of inserters, as claimed by Local No. 14. Nor is it necessary to consider the effect of the oral agreement of October 1938 between the Record and the Association since the parties agreed that continued compliance therewith should depend upon the Board's finding the inserters constituted an appropriate unit. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSION OF LAW No question concerning the representation of employees of the Philadelphia Inquirer Company or the Philadelphia Record Com- pany, both of Philadelphia, Pennsylvania, in units which are appro- priate for the purposes of collective bargaining has arisen, within the meaning of Section 9 (c) of the National Labor Relations Act. ORDER Upon the basis of the. foregoing findings of fact and conclusion of law, the National Labor Relations Board hereby dismisses the peti- s See Matter of Times Publishing Company and The Newspaper Guild of Detroit, 8 N. L. R. B . 1170, 1176. 4Matter of Wheeling Steel Corporation, Stubenville, Ohio and Order of Railway Conductors of America, 8 N. L. R. B. 102. PHILADELPHIA INQUIRER COMPANY 803 tions for investigation and certification filed by the Philadelphia Inserters and Inside Delivery Workers Association. MR. EDWIN S . SMITH, dissenting : Under the circumstances of this case, I believe the inserters em- ployed on a piece-work basis in the inside delivery departments of the Inquirer and the Record, respectively, should have an opportunity to indicate whether they desire separate bargaining units or wish to be included in larger units with all other employees in the inside delivery departments of their respective plants. The inserters had their own organization at the Inquirer for some years before the Philadelphia Mailers' Union, Local No. 14, began to organize employees of the inside delivery department in 1936. All questions concerning inserting are referred by the Inquirer to the chapel chairman of the inserters; questions concerning other mailing work to a chairman designated by Local No. 14. At the Record, the inserters were successful in their negotiations with the management after Local No. 14 had failed to obtain an agreement for them, and secured closed-shop contracts annually from 1935 to 1938.. The Record has also recognized the seniority rights of the inserters as distin- guished from the seniority rights of regular mailers and permit men. It is true that the constitution of the inserters' Association makes eligible for membership all employees of the inside delivery depart- ments of Philadelphia newspapers, thus asserting a jurisdiction con- current with Local No. 14, and that the Inquirer inserters in their original and first amended petitions for certification asked for units which would have included other employees than inserters. But there is no evidence in the record that the Association ever solicited membership among the regular mailers, and the constitutional pro- vision permitting membership of mailers is apparently a dead letter at the present time. These declarations, therefore, should not be allowed to prevail over the collective bargaining of several years' duration which the inserters have obtained for themselves by their own efforts. Nor is the fact that in other cities inserters have organ- ized themselves with all other employees of their inside delivery de- partments persuasive in view of the history of separate collective bargaining by these Philadelphia inserters. In the present case the history of collective bargaining between the inserters and the man- agements of the Inquirer and the Record is sufficiently extensive to warrant separate units if the inserter groups so elect.5 See Matter of Bloedel-Donovan Lumber Mills and Columbia Valley Lumber Com- pany and International Woodworkers of America, Local No . 46, 11 N. L. R. B. 258; and my concurring opinions in Matter of American Hardware Corporation and United Elec- trical and Radio Workers of America, 4 N. L. R . B. 412, 422, and Matter of Willys Over- land Motors, Inc. and International Union, United Automobile Workers of America, Local No. 12, 9 N. L. R. B. 924, 936. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Affidavits introduced at the hearing by the Association show that the Inquirer inserters have already expressed their desire for a sepa- rate unit: 75 of the 83 inserters in that plant have designated the Association as their exclusive representative and not more than 5 are members of Local No: 14. Therefore, I believe the Inquirer inserters should be set up forthwith as a separate unit and the Association certi- fied as their exclusive representative for the purposes of collective bargaining.e Forty-eight of the sixty-nine Record inserters have signed affidavits designating the Association as their representative. Local No. 14 claims as members 18 or 20 of the 69. Since the possi- bility of duplications in membership makes uncertain the present desire of the Record inserters, they should have an opportunity to register their preference for the Association or for Local No. 14 as their exclusive representative. On the outcome of such an election the appropriate unit at the Record should depend. G See my concurring opinion in Matter of The William Powell Company and Pattern Makers Association of Cincinnati, 12 N. L. It, B. 115.