Cleveland Co.

In the Matter of CLEVELAND COMPANY, PUBLISHER OF THE CLEVELAND NEWS and CLEVELAND NEWSPAPER GUILD, LOCAL 1 (C. I. 0.) Case No. R-1605.-Decided January 15, 1910 Newspaper Publishing Indus trp-Investigation of Representatives: contro- versy concerning representation of employees: controversy concerning appro- priate unit ; refusal of employer to recognize union as representative of employees within proposed unit until question of unit is determined-Unit Appropriate for Collective Bargaining: elections to determine whether com mercial-department employees should be combined with editorial employees. into one unit since substantial number of commercial employees had affirma- tively indicated opposition to representation by Union and Union had for 5 years represented editorial employees only ; no rival union contending for separate unit of commercial employees ; certain employees excluded : employees- covered by contracts between the Company and craft unions; certain employees in circulation department, maintenance employees, garage employees, and main- tenance machinist, not coveted by contract but claimed by other unions ; certain executives ; private secretaries to corporate officers ; and occasional contribu- tors-Representatives: proof of choice: insufficient evidence of Union's ma- jority status among editorial employees, although Company did not question majority-Elections Ordered: separate elections as to employees in commercial and editorial departments. Mr. Harry L. Lodish and Mr. Max W. Johnstone, for the Board. Baker, Hostetler c& Patterson, by Mr. S. D. L. Jackson, Jr., of Cleveland, Ohio, and Stevenson, Jordan c& Harrison, by Mr. Ralph Lind, of New York City, for the Company. Kastriner, Schweid e& Addams, by Mr. Milton B. Schweid, and Mr. I. L. Kenen, of Cleveland, Ohio, and Mr. Abraham J. Isseman, of Newark, N. J., for the Guild. Mr. John Gavigan, of Cleveland, Ohio, for the Mailers. Mr. Dan C. Chambers and Mr. James C. Connell, of Cleveland, Ohio, for the Drivers. Mr. Jack Laidlaw, of Cleveland, Ohio, for the Engravers. Mr. Elwood M. Milligan, of Parma, Ohio, for the Stereotypers. Mr. Thomas A. Flynn and Mr. John J. LaVelle, of Cleveland, Ohio, for the B. S. H. U. Mr. E. 0. Meerchaum, of Cleveland, Ohio, and Mr. David Kaplan, of Washington, D. C., for the I. A. M. Mr. Philip Schoenberg, of Cleveland, Ohio, for the Vendors. Mr. Ivar Peterson, of counsel to the Board. 19 N. L. R. B., No. 51. 435 436 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On June 30, 1939, Cleveland Newspaper Guild, Local No. 1, herein called the Guild, filed with the Regional Director for the Eighth Region (Cleveland, Ohio) a petition alleging that a question affecting ,commerce had arisen concerning the representation of employees of the Cleveland Company, Cleveland, Ohio, herein called the Company, .and requesting an investigation and certification of representatives -pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 27, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate 'hearing upon due notice. On October 10, 1939, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, upon the Guild, and upon the following labor organizations claiming to repre- sent employees directly affected by the investigation : Cleveland Mailers' Union No. 12, herein called the Mailers ; Cleveland Federa- tion of Labor ; Allied Printing Trades Council ; Cleveland Web Pressmen's Union No. 5; Cleveland Typographical Union No. 53; Newspaper Delivery Drivers, Chauffeurs and Handlers Union Local No. 473, herein called the Drivers; Cleveland Photo Engravers' Union No. 24, herein called the Engravers; Cleveland Newspapers Vendors Union, herein called the Vendors;' Cleveland Paper Handlers' Union No. 11; Cleveland Stereotypers Union No. 22; and International Union of Operating Engineers, Local 589, 589A. Pursuant to the notice, a hearing was held on October 30, 31, November 1, 2, 3, and 4, 1939, at Cleveland, Ohio, before Joseph L. Maguire, the Trial Ex- aminer duly designated by the Board. During the course of the hear- ing Building Service Help Union, Local No. 47, herein called the B. S. H. U., and International Association of Machinists, District 54-A, herein called the I. A. M., were, upon motion, permitted to ;intervene in the proceedings. The Board, the Company, and the Guild were represented by counsel, and the other organizations made parties herein,2 by counsel or representatives of the respective unions. All ' The same organization as Cleveland Newsboys Union, also served. 2 Although served with notice of the hearing, the following organizations did not appear: .Cleveland Federation of Labor, Allied Printing Trades Council, Cleveland Web Pressmen's Union No. 5, Cleveland Typographical Union No. 53, Cleveland Paper Handlers' Union _No. 11, and Interpational Union of Operating Engineers, Local 589, 589A. CLEVELAND COMPANY 437 participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. 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 com- mitted. The rulings are hereby affirmed. The Guild and the Company, on November 18 and 20, 1939, respec- tively filed briefs, and on December 1, 1939, the Company filed a reply brief, which have. been considered by the Board. On December 5, 1939, oral argument was had before the Board in Washington, D. C. The Company, the Guild, and the I. A. M. were represented by counsel and participated in the argument. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Cleveland Company, an Ohio corporation, having its principal office and place of business in Cleveland, Ohio, is engaged in the publication, distribution, and sale of a daily (except Sunday) news- paper, the Cleveland News. Equipment and supplies purchased by the Company per year have a value of approximately $460,000. Of this amount, approximately 91 per cent is purchased from outside the State of Ohio. The largest single item included in the Company's purchases consists of newsprint, having a .value of approximately $400,000, which is "largely purchased from foreign countries." The daily average circulation of the Cleveland News for the 6 months preceding October 1, 1939, was 123,479 copies, approximately one- half of one per cent of which were circulated and distributed outside the State of Ohio. Approximately 25 per cent of the news items printed in the Cleveland News were received from outside the State. The Company is a member of the Associated Press and subscribes to news feature and photographic services which collect and transmit news, features, and photographs in all parts of the United States. The total value of advertising carried per year is in excess of $1,500;000, of which approximately 20 per cent represents national advertising. The Company employs about 650 persons. The Com- pany stipulated that it was engaged in interstate commerce. II. THE ORGANIZATIONS INVOLVED Cleveland Newspaper Guild, Local No. 1, is a labor organization, a local of the American Newspaper Guild, a labor organization, admitting to membership employees of the Company who are eligible 283030-41-vol. 19----29 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to membership in the American Newspaper Guild, which admits to membership, among others, "any person gainfully employed in. and devoting the major part of his time to an editorial, business, circula- tion, promotion or advertising department, or kindred groups of employees, of a news publication," except persons "whose interests lie with the employer as against the employees." The American Newspaper Guild is affiliated with the Congress of Industrial Organizations. Newspaper Delivery Drivers, Chauffeurs and Handlers. Union Local No. 473, is a labor organization affiliated with the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, having jurisdiction over persons "engaged in handling, dis- tributing, delivering, and collecting for newspapers and periodicals . . . throughout Greater Cleveland and vicinity." Building Service Help Union, Local No. 47, is a labor organization affiliated with Building Service Employees International Union, hav- ing jurisdiction over property maintenance employees of the Company.3 International Association of Machinists, District 54-A, is a labor organization, admitting to membership in its locals general mechanics, greasers, persons who make minor repairs on automobiles, and "parts chasers." 4 District 54-A of the I. A. M. consists of two locals, 439 and 1363. In addition to the organizations listed above, the following labor organizations, whose respective jurisdictions over various employees of the Company are not disputed, are involved : Cleveland . Photo Engravers' Union No. 24; Cleveland Mailers' Union No. 12; Cleve- land Stereotypers Union No. 22; and Cleveland Newspaper Vendors Union. III. THE QUESTION CONCERNING REPRESENTATION In December 1934 the Guild and the Company executed a contract for a term of 1 year, covering employees in the editorial department. Thereafter, new contracts were entered into by the Guild and the Company, covering editorial employees only, the last such contract expiring on May 12, 1939. This contract, however, was extended by oral agreement pending the determination of the present dispute by the Board. During the latter part of April 1939 the Guild presented to the Company a proposed contract which contained provisions covering editorial employees and some of the employees in the commercial de- 3It was stipulated by all parties, including Cleveland Stereotypers Union No. 22, that two laborers in the Stereotype department, E. Bridle and C. Itodecker, are within the jurisdiction of the B. S. H. U. 4 The representative of the I. A. Al . defined a "partst chaser" as a person engaged in purchasing or procuring machine parts. CLEYE'LAND COMPANY 439 partment. The Company replied on May 12, 1939, stating that, while it was prepared to negotiate a new contract for editorial em- ployees, "It does not seem appropriate that a few scattered business office 5 employees should be included under the editorial agreement." The Company further stated that it was willing to negotiate with the Guild with regard to business-office employees if and when the Guild presented a separate contract for such employees and demon- strated that it represented "the majority of the business office em- ployees." - On May 25, the Guild notified the Company that "the Guild now represents a majority of the so-called `white-collar' em- ployees" of the Company and requested that "negotiations looking toward their inclusion in the contract" be arranged. On May 25, it group of employees in the commercial department presented a, petition to Charles F. McCahill, vice president and 'general manager of the Company, stating; inter alia: We feel that . . . if you should sign a collective bargaining agreement with the Cleveland Newspaper Guild, covering Busi- ness Office employees, you would be depriving us of our rights as individuals to bargain for ourselves as we see fit. We, therefore, urge you not to sign an agreement with the Cleveland Newspaper Guild which in any way recognizes the guild as representative of the Business Office, without at least giving us the following undersigned Business Office Employees a right to express our own preference. On May 31 McCahill advised the Guild that he had received the foregoing petition and stated : "In view of the fact that the signatures affixed to this petition represent a majority of the business office employees, I am not, under the circumstances, at liberty to negotiate with the Guild for the business office." We find that a question has arisen concerning the representation of. employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. "The commercial department is also referred to as the business office. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE UNIT In its petition, as amended at the hearing, the Guild alleged that an appropriate unit consists of "all of the employees in the editorial and commercial divisions of the Company, including persons employed in the advertising, business, circulation, and mechanical departments, excluding only executives, subscription solicitors in the circulation departments and " persons in the mechanical and circulation depart- ments who are members of or eligible to membership in recognized craft unions." The record shows that the Company has collective bargaining agreements with the following labor organizations in addition to its contract with the Guild as mentioned above : Cleveland Photo En- gravers' Union No. 24, Cleveland Typographical Union No. 53, Cleve- land Stereotypers Union No. 22, Cleveland Web Pressmen's Union No. 5, Newspaper Delivery Drivers, Chauffeurs and Handlers Union Local No. 473, Cleveland Mailers' Union No. 12, Cleveland Newspaper Vendors Union, Cleveland Paper Handlers' Union No. 11, and In- ternational Union of Operating Engineers, Local 589, 589A. It was stipulated by the parties that the Guild did not claim that any of the employees covered by the contracts with the foregoing organizations are' within; the Guild's proposed-unit, and we so find. The Company's position with regard to the general bargaining unit sought .by. the Guild is that»"employees in the commercial depart- ment should not be included in such unit unless by separate vote they express a desire for such inclusion. In support of this position the Company points to the petition of May 25, 1939, referred to above, notifying the Company that the signers do not desire to be repre- sented by the Guild. The names of about 92 employees who were employed in the commercial department shortly before the.hearing and whom the Guild would include in the appropriate unit, appear upon the .petition. The record shows that there are about 145 em- ployees in the commercial department claimed by the Guild. Aside from testimony that shortly before May 25, 1939, about 41 employees in the "business office," who were not identified by name or by job classification, had designated the Guild as their representative, there is no evidence in the record showing the extent of Guild membership among employees in the commercial department. In other representation cases which have arisen in the newspaper- publishing industry, the question of combining the editorial and O The Company's pay roll , a copy of which was introduced in evidence, contains no employees classified as subscription solicitors in the circulation department. 7 Although 'the 'petition bore 127 signatures, about 35 signatures are eliminated by a comparison with the pay roll as of October 21, 1939, and by taking into account the exclusions sought by the Guild. CLEVELAND COMPANY 441 commercial departments into one unit for the purposes of collective bargaining has been presented. In support of the broad unit we have pointed to the functional coherence and interdependence of the editorial and commercial departments, considerations which are equally present here. Where no rival claimant has sought separate representation for commercial-department employees, and where there has been no substantial showing of opposition by the employees in the commercial department to inclusion within the broader unit, we have found a unit, substantially similar to that here proposed by the Guild, to be appropriate.8 On the other hand, where another labor organization has claimed to represent the commercial-depart- ment employees in a separate unit, we have concluded that the in- clusion of commercial-department employees in the broad unit should depend upon the desires of the employees involved.' As indicated above, about 92 of the approximately 145 commercial- department employees whom the Guild would include in an appro- priate unit have, by signing the petition, affirmatively indicated a desire not to be represented by the Guild. In view of this expression, the fact that the Guild and the Company have for 5 years recognized the editorial employees as a separate group for the purposes of collec- tive bargaining, and the inconclusive nature of the history of collec- tive bargaining in the newspaper industry for editorial and com- mercial-department employees,10 we find that the inclusion of the commercial-department employees in the broad unit should depend upon their desires as expressed in the election which we shall direct, even though the Guild's claim to represent these employees is not contested by another labor organization. We further find that the desires of such employees can best be determined by an election by secret ballot. s Matter of Daily Mirror, Inc. and Newspaper Guild of New York, 5 N. L. R. B. 362; Matter of Seattle Post-Intelligencer Department of Hearst Publications , Inc. and Seattle Newspaper Guild, Local No. 82, 9 N . L. R. B. 1262; Matter of New York Evening Journal, Inc. and Newspaper Guild of New York, 10 N. L. R. B. 197; Matter of Brooklyn Daily Eagle and Newspaper Guild of New York, 13. N. L. R. B. 974; Matter of New York Post, Inc., and Publishers Service, Inc. and Newspaper Guild of New York, 14 N. L. It. B. 1008; Matter of Globe Newspaper Company and Newspaper Guild of Boston., 15 N. L. R. B. 953. 0 Matter of Milwaukee Publishing Company and Milwaukee Newspaper Guild (CIO), 10 N. L. R. B. 389 ; cf. Matter of Boston Daily Record (New England Newspaper Publish- ing Co.) and Newspaper Guild of Boston (American Newspaper Guild), 8 N. L. It . B. 694. And see Matter of Indianapolis Times Publishing Company and The Indianapolis Newspaper Guild, 8 N. L. It. B. 1256; Matter of News Syndicate Co., Inc. and Newspaper Guild of New York, 4 N. L. It. B. 1071. 10 There is evidence in the record showing the coverage of a number of contracts be- tween other locals of the American Newspaper Guild and various newspaper publishers. As of July 15, 1939 , in 32 newspapers the contracts covered editorial -department em- ployees only ; in 33 newspapers the contracts covered editorial employees and the em- ployees in one or more subdepartment of the commercial department , and in some in- stances, certain employees in the mechanical department , in 5 newspapers there were separate contracts for editorial and commercial -department employees. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If a 'majority of the employees in each department desire the Guild to represent them we shall find that the unit composed of both edi- torial and commercial-department employees is appropriate. We must therefore ascertain the desires of the employees in the editorial department as well as the commercial department. Although the Company at the hearing did not question the Guild's majority in the editorial department, in a brief filed with the Board it suggested that such issue be determined through an election. The Guild offered no proof of majority representation at the hearing other than testimony that in May 1939, 83 editorial-department employees out of about 90 had designated the Guild as their bargaining representatives. There is thus insufficient evidence in the record as to the editorial 'employees upon which to base a certification. We therefore find that an election is necessary to determine the desires of the employees in the editorial department. During the hearing the Guild and the Company agreed that certain executives, who are listed in Appendix A hereto, should be excluded from the appropriate unit. We see no reason for departing from the desires of the parties in this respect; accordingly, we shall exclude the executives listed in Appendix A. The Company took a neutral position with respect to the inclusion or exclusion of the private secre- taries to the corporate officers." The position of the Guild as to these employees was not stated on the record. We shall exclude the private secretaries to the corporate officers from the appropriate unit, since we believe that the management should not be required to handle confidential work through employees in the unit represented by the union with which it is dealing.12 There remain for consideration the claims of the B. S. H. U., the I. A. M., and the Drivers to certain employees whose exclusion was agreed to by the Guild, and certain alleged executives and occasional contributors. Employees claimed by the B. S. H. U. The Guild would exclude the property-maintenance employees, con- sisting of about 20 employees, and 2 laborers, E. Bridle and C. Rodecker, in the stereotype department. It was stipulated by the parties that the jurisdiction of the B. S. H. U. covers these employees. The B. S. H. U. does not have a contract with the Company covering the foregoing or any other employees. We shall exclude the property- maintenance employees and the two laborers in the stereotype depart- ment, E. Bridle and C. Rodecker, listed in Appendix B attached hereto. "Tile corporate officers are D. R. Hanna, Jr., president, C. F. McCahill, vice president and general manager, and J. J. Levins, secretary and treasurer. 12 See Matter of Brooklyn Daily Eagle and Newspaper Guild of New York, 13 N. L. R. B. 974. 'CLEVELAND COMPANY 443 Employees claimed by the I. A. M. The I. A. M., which has no contract with the Company, claims that six employees in the garage and G. C. Spicer, the maintenance machin- ist, are within its jurisdiction. The Guild agreed that these employees should be excluded from the appropriate unit, but would include E. A. Brooks, who is attached to the garage as bookkeeper and accountant. The I. A. M. does not claim Brooks. We shall include Brooks in the unit. Five of the garage employees claimed by the I. A. M. wash and lubricate automobiles and make minor repairs; the sixth, George Cooper, buys gas, oil, and parts; all of them, as well as the mainte- nance machinist, are eligible to the I. A. M. We shall exclude from the unit Spicer and the garage employees, listed in Appendix C attached hereto. Employees claimed by the Drivers During the hearing the Drivers, which has a contract with the Company covering certain employees, claimed that 13 employees in the circulation department, whose names appear in Appendix D attached hereto, are within its jurisdiction. The Guild agreed that its claim did not include these employees. The Company, however, contends that the 13 employees involved, since they are not, now covered by the Drivers' contract and have never before been claimed by'the Drivers, should be included in the Guild's proposed unit. The Drivers claims that the work performed by the above-men- tioned employees is within its jurisdiction and similar, at least in part, to the duties of delivery drivers as defined by the contract with the Company. The Drivers has jurisdiction "over all men engaged in handling, distributing, delivering and collecting for newspapers . .. throughout Greater Cleveland and vicinity." The contract provides that "the duties of a routeman (driver) shall consist of, delivery, promotion, and any and all parts of collection of money on his own route." Five of the 13 are canvassers who work in the city training carrier boys, verifying orders, and investigating complaints. On occasions, such as an emergency, a canvasser takes the place of a newspaper delivery driver. A suburban canvasser, R. Hurst, per- forms similar duties outside Greater Cleveland. Three street-sales supervisors have charge of the distribution and collection work done by delivery drivers assigned to street sales, and on rare occasions take the place of a delivery driver. Two roadmen supervise suburban drivers, handle truck shipments of newspapers, and in an emergency substitute for the drivers in their territory. -D. Fitzsimmons con- ducts a training school for new carrier boys, prepares promotion material for them, and on occasion takes the place of a home delivery 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD driver. Carl Milms, a street-sales checker, supervises and trains colored carrier boys and turns over to the delivery driver the money for the newspapers, which he collects from the carrier boys, a func- tion usually performed by the delivery drivers. He does not substi- tute for drivers. We conclude that the 13 employees in the circulation department, listed on Appendix D annexed hereto, should be excluded from the unit. Executives There is controversy over five employees, three in the commercial department and two in the editorial department. The Guild seeks to exclude them on the ground that they are executives; with duties of a supervisory nature; the Company, on the other hand, points out that two of the alleged executives, in the editorial department, have in the past been included in the Guild's contract, and urges that no employee should be excluded unless it is clear that he is an executive. Paul Hodges is a city editor, in charge of the city desk. He gives assignments to the reporters working under him, interviews appli- cants, and makes recommendations concerning hiring and discharg- ing. J. B. Mullaney is the news editor. Howard, the editor, testified that Mullaney is charged with "the responsibility for the selection of news and . . . seeing that the editions go to press on time." He takes the place of Kane, the managing editor, during the latter's absence, and makes recommendations as to hiring and discharging. The Guild conceded that it had in the past bargained for both Hodges and Mullaney. Moreover, the record shows that the Guild has no objection to the inclusion of other minor supervisory employees in the editorial department who, within their sphere, exercise, compa- rable supervisory functions.13 We see no reason for distinguishing between Hodges and Mullaney and other so-called supervisors. In the absence of any satisfactory explanation of the attempted distinction, we shall include Hodges and Mullaney in the appropriate unit. Julia Krieger is the chief telephone switchboard operator. She has charge of six operators and interviews applicants. There is dispute as to whether she has the power to hire and discharge, but she does have power to make recommendations in these matters. We shall, therefore, exclude her from the unit. _ Doris Brown is the main operator in charge of about eight classified- advertising telephone solicitors. She does not have power to hire 13 The sports editor and the chief librarian have charge of their respective subdepart- ments and recommended the hire and discharge of employees. In a -previous case we excluded such employees . Matter of Brooklyn Daili Eagle and Newspaper Guild of New York, 13 N. L. R. B. 974: CLEVELAND COMPANY 445 and discharge but makes recommendations in these matters and dis- cusses job assignments with the classified-advertising superintendent. We shall, therefore, exclude her from the unit. F. J. Sheron, in the statistical subdepartment of the advertising department, measures the advertising content of the newspaper and does the more important statistical work. He has no power to hire or discharge nor does he make recommendations in these matters. We shall include him in the unit. Occasional Contributors The Guild would exclude three persons, whose names are listed on the editorial-department pay roll, on the ground that they are occasional contributors. Marjory Strong contributes a Weekly dog column and an occasional dog-show story. Edna Woolley contributes a weekly column by mail from Sarasota, Florida. Paul Young con- tributes a garden column two or three times a week. We shall exclude these three occasional contributors from the appropriate unit. The Company contends that two other contributors, Louise Bruner and Howard Wolf, are in the same category as Strong, Woolley, and Young. Bruner contributes a daily column which she sends from her home by messenger; Wolf, who is on a year's leave of absence, also contributes a daily column which he sends by mail from his present residence in Columbus, Ohio. We shall include Bruner and Wolf in the unit, since they are regular daily contributors. As stated above, the determination of the appropriate unit will in part depend upon the desires of the employees as expressed in the elections which we shall direct. Two separate elections shall be held, one among employees in the commercial department 14 and the other among employees in the editorial department. If both groups of employees participating in the elections choose the Guild, they will together constitute a single bargaining unit. If they do not, we shall dismiss the petition, inasmuch as no question has arisen con- cerning the representation of employees in the editorial department as such and since neither the Guild nor any other labor organization seeks certification of representatives in any unit other than the unit the Guild here claims to be appropriate. "For the purposes of voting, we shall include E. R. Wright and Dorothy Nelson in the commercial department. Each appears on both the editorial and commercial-department pay rolls. However, it appears that they are more closely identified with the commer- cial department. Wright solicits church advertising and contributes a weekly column of church news ; Nelson conducts the home institute and occasionally contributes food articles. From the standpoint of the editorial department, they are not unlike the occa- sional contributors referred to above. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VI. THE DETERMINATION OF REPRESENTATIVES At the hearing the Guild offered no proof of representation among the employees in the unit it claimed to be appropriate, other than testimony that in May 1939 about 83 editorial-department employees and 41 commercial-department employees had designated the Guild as their representative. We find, therefore, that the question con- cerning representation which has arisen can best be resolved by elec- tions by secret ballot. We shall direct the use of the Company's pay roll immediately preceding the date of this Direction for the deter- mination of eligibility to participate in the elections. The Guild did not indicate on the record whether or not it de- sired to participate in the separate elections. In the event the Guild does not wish to participate in the elections, we shall entertain a request for withdrawal from the proceedings, and dismiss the peti- tion, if such request be made. within 5 days after receipt of notice of the Direction of Elections herein, by notification to the Regional Director for the Eighth Region. 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 A question affecting commerce has arisen concerning the repre- sentation of employees of the Cleveland Company, Cleveland, Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with the Cleveland Company, Cleveland, Ohio, elections by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction, under the•direction and super- vision of the Regional Director for the Eighth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the employees of the Cleveland Company within the two . CLEVET.AND COMPANY 447 groups described below who were on the pay roll of the Company immediately preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding those who have since quit or who have been discharged for cause and excluding the private secretaries to the corporate officers; Julia Krieger, Doris Brown, Marjory Strong, Edna Woolley, and Paul Young; and those whose names appear in Appendices A, B, C, and D : (a) Employees in the commercial department, to determine whether or not they desire to be represented by Cleveland News- paper Guild for the purposes of collective bargaining; (b) Employees in the editorial department to determine whether or not they desire to be represented by Cleveland Newspaper Guild for the purposes of collective bargaining. MR. WILLIAM M. LEISERSON, concurring in part and dissenting in part : The majority opinion here reverses the ruling in the Globe News- paper Company case 15 where a separate election among the com- mercial employees was refused by the majority. I am in agreement with this part of the present decision, but, as in the Globe Newspaper case, I cannot agree that an election among the editorial employees is justified by the record. There is no question concerning the representation of editorial employees. These employees have been represented by. the Guild since 1934 under a collective bargaining agreement which recognizes the Guild as the exclusive representative of a unit consisting of the employees in the editorial department. The Company does not question the Guild's majority in this unit; the representative of the Guild testified that it had 83 members out of about 90 in the unit, and no other organization is challenging the right of the Guild to act as representative in this unit. The Guild is the duly designated and selected representative of the editorial employees, and its contract in the record shows that the Company recognizes it as such. Since the facts clearly establish that there is no question con- cerning representation among the editorial employees, I am of the opinion that the Board is ;not authorized to order an election among these employees. '6 Matter of Globe Newspaper Company and Newspaper Guild of Boston, 15 N. L. R. B. 953. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A Dan R. Hanna, Jr., president. C. F. McCahill, vice president and general manager. J. J. Levins, secretary and treasurer. N. R. Howard, editor. Hugh Kane, managing editor. Leo P. Doyle, advertising director. G. F. Disney, in charge of local and national advertising solicitors. E. J. Maus, classified advertising superintendent. J. Kirvey, in charge of advertising department artists. F. Kolofer, building maintenance superintendent. J. V. Madigan, circulation manager. John Maynard, assistant circulation manager. W. IT. Cowgill, mechanical superintendent. APPENDIX B Geo. King Ross Topping Chas. Sheridan Clyde Miller Otis Turner Edw. Harrington Stanley Hall Emmett Hemphill 0. Hammersmith Steve Martinovich John Pohoverki Geo. Cooper John Warren Edw. Supinski Leonard Buehner Katie Phillip Anna Karash Mary Kulan Anna Kolomychuk Anna Gwiazda Rose Petell Katie Olszowy Anna Hawryenk Walter Christy E. Bridle C. Rodecker APPENDIX C W. G. Hecker S. Blaszak G. C. Spicer APPENDIX D Fitzsimmons, in home delivery promotion. Canvassers : Carl Frey Wm. Kirk Arthur Muldoon R. Myers G. D. Whitelock Street Sales Supervisors : Frank LeClair A. Reagan F. Fusco Carl Milms, street sales checker. Roadmen : Dennis Lucas Albert Barton R. Hurst, suburban canvasser.