Item Company, Ltd.

In the Matter Of ITEM COMPANY, LIMITED and INTERNATIONAL TYPO- GRAPHICAL UNION, UNAFFILIATED Case No. B-2342.-Decided April 04, 1941 Jurisdiction : newspaper publishing industry. Investigation and Certification of Representatives : existence of question : Com- pany refused to bargain with petitioning union because of its agreement with employees providing that certain persons named in agreement repre- sent employees in all matters respecting employment ; election necessary. Contract designating a bargaining committee of three employees to rep- resent employees in all their relationships to Company, but which specifi- cally states that it is an agreement between each of employees and Company, is not such a 'collective bargaining contract as to constitute a bar to a determination of representatives. - Employees laid off on basis of seniority to be given preference in reem- ployment in order of seniority if Company requires additional employees in future have a sufficiently continuing interest in wages, hours, and working conditions of Company as to entitle them to participate in election. Unit Appropriate for Collective Bargaining : all foremen, journeymen, printers, apprentices, and beginners employed in the composing room of the Company, excluding the general superintendent, the general superintendent's secretary, and porters. Deutsch and Kerrigan, by M11r. Eberhard P. Deutsch and Mr. Alfred K. Hagedorn, of New Orleans, La., for the Company. Mr. John J. Conley, of New Orleans, La., for the International. Mr. Elias Bowsky, of New Orleans, La., for the Committee. Mr. Daniel J. Harrington, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On January 6, 1941, International Typographical Union, Unaffili- ated, herein called the International, filed with the Regional Director for the Fifteenth Region (New Orleans, Louisiana) a petition alleging that a question affecting commerce had arisen concerning the represen- tation of employees of Item Company, Limited, New Orleans, Louisi- ana, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Na- 31 N. L..R. B, No. 42. 278 ITEM COMPANY 279 tional Labor Relations Act, 49 Stat. 449, herein called the Act. On January 24, 1941, the National Labor Relations Board, herein called the Board , acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regula- tions-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On February 6 and February 10, 1941, respectively , the Regional Director issued a notice of hearing and a notice of postponement of hearing, copies of which were duly served upon the Company, the' International , and the Bargaining Committee of the Composing Room Employees of the Item Company , Limited, herein called the Com- mittee, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice , a hearing was held on February 21, 1941 , at New Orleans , Louisiana , before Warren Woods, the Trial Examiner duly designated by the Chief Trial Examiner ., The Company and the Committee were represented. by counsel, the International by a representative , and all participated in the hearing. Full opportunity to be heard , to examine and cross-examine witnesses , and to introduce evidence bearing upon the issues was afforded all parties. At the hearing the Company moved to dismiss the petition on the ground , in substance, that a contract, discussed below, is a bar to these proceedings . The Trial Examiner did not rule upon this motion, stating that ruling would be made by the Board . The motion is hereby denied for the reason herein- after set forth? 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. On March 10, 1941, the Company and the Committee and on March 11 the International filed briefs , which the' Board has con- sidered. On March 11, 1941, oral argument was had before the Board in Washington, D. C. The Company and the Committee, represented by counsel , and the International , by a representative, participated in the oral argument. Upon the entire record-in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Item Company, Limited, a Louisiana corporation , is engaged in the publication of a daily newspaper in New Orleans, Louisiana. 1 See Section III, enfra. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prior to January 11, 1941, it published two daily newspapers on week days and one on Sundays. On January 13, 1941, it combined its morning and afternoon papers into one afternoon paper named The New Orleans Item and the Tribune. It continues to publish on Sunday mornings The Sunday Item-Tribune. Approximately 35 per cent of -the news published in the Company's newspapers orig- inates outside the State of,Louisiana, and is supplied through the Associated- Press, the United Press Association, and other news services. About 65 per cent of the features published daily in the Company's papers, such as comics, cartoons, and syndicated matter, originate outside the State of Louisiana. Approximately 3 per cent of the total average circulation of 63,587 of the afternoon paper, and about 5 per cent of the total average circulation of 63,045 of the Sunday morning paper, are distributed to customers located outside the State of Louisiana.. During 1940 the Company purchased 7,000 tons of newsprint, valued at $350,000, outside the State of Louisiana. During the same period it purchased approximately $51,500 worth of miscellaneous materials, of which about $14,000 worth was pur- chased outside the State. The Company employs 396 persons, 73 of whom are employed in its composing room. For purposes of this proceeding the Company admits that its business affects commerce, within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED International Typographical Union, Unaffiliated, is an unaffiliated labor organization admitting to membership composing room employees of the Company. Bargaining 'Committee of the Composing Room Employees of the Item Company, Limited, is an unaffiliated labor organization in which composing room employees of the Company participate by virtue of their employment. M. THE QUESTION CONCERNING REPRESENTATION The Company has had written contracts with the composing room employees since 1933, which have been negotiated by the Committee on behalf of the employees. The Committee, consisting of three composing room employees, is elected annually by those employees for the purpose of negotiating such contracts. After a contract has been negotiated the Committee has no further function except to handle complaints and grievances. It has no by-laws, rules, or regu- lations. The present Committee was elected on September 3, 1940, and negotiated a contract with the Company effective from Septem- ber 15, 1940, to September 15; 1941. This contract is in the form of a letter from the employees to the-Committee, dated September 16, \ ITEM COMPANY 281 1940, stating, "The undersigned hereby request that you endeavor to reach an agreement with the management of the Item Co., Ltd., on the following terms." Then follow provisions relating to hours, wages, overtime, arbitration of disputes, and apprentices. Clause "G" provides that "during the term of the proposed agreement, your committee shall continue to represent the undersigned in all of their relationships to the company." The last paragraph of the letter states, "We understand that acceptance of this offer by the. Com- pany will constitute an agreement between each of the undersigned and the company." This is followed by the signatures of 72 em- ployees, followed by the signatures of the members of the Committee. The offer contained in the letter was accepted by the Company on September 17, 1940. In October and November 1940 the International conferred with the Company with respect to collective bargaining' on behalf of the composing room employees. In December 1940 the International in- formed the Company that a majority of these employees desired that the International enter into a collective bargaining agreement with the Company on their behalf and requested a conference with the Company. On January 2, 1941, the Company replied that it had a written agreement with all the composing room employees effective until September 15, 1941, providing that certain persons named therein represent the employees in all matters respecting employment and that therefore the Company was not at liberty to negotiate with the International. The Company and the Committee contend that the contract con- stitutes a bar to a determination of representatives. We find no merit in the contention. While, by the contract, the employees have designated the Committee to represent them " in all of their relation- ships to the company," the contract itself is specifically stated to be an agreement between each of the employees and the Company. Under the circumstances, the contract asserted as a bar is not such a collective bargaining contract 'as to constitute a bar to a determina- tion of representatives for the negotiation of a future collective bargaining contract. From a report prepared by the Trial Examiner at the hearing, it appears that the International represents a substantial number of the Company's, employees in the, unit hereinafter found to be appro- priate for the purposes of collective bargaining.2 2 The report stated that a check by the Trial Examiner of 42 membership application cards submitted by the International disclosed that the signatures on all the cards appeared genuine, that all were dated between February 1940 and January 1941 , that the names on 36 of the cards appeared on the Company 's pay roll of January 12, 1941, containing 87 names, and that the names on 29 of the cards appeared on the Company's pay roll of February 16, 1941, containing 74 names. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 com- merce and the free flow of commerce. 1 V. THE APPROPRIATE UNIT The International claims that all foremen, journeymen , printers, and apprentices employed in the Company's composing room, exclud- ing the general superintendent, his secretary, porters, and beginners, constitute a unit appropriate for the purposes of collective bargain- ing. The Company and the Committee agree as to the appropriate- ness of such a unit except as regards the exclusion of beginners therefrom. A beginner, as defined by the International, is an em- ployee, with less than 2 years' experience in composing room work, who performs general work not ordinarily performed by an appren- tice or'by a journeyman and cannot work or practice on a machine. The' Company contends that it has no beginners as defined by the International, but that it has apprentices who as part of their duties perform some general work. Functionally and in their interests these employees are closely related to other composing room em- ployees. No sound reason appears why they should be left without representation or the prospect . of representation. We shall include beginners within the unit. We find that all the foremen; journeymen, printers, apprentices, and beginners employed in the Company's composing room, excluding the general superintendent, the general superintendent 's secretary, and porters, constitute a unit appropriate for the ,purposes of col- lective bargaining, and that said unit will insure to employees of ,the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by holding an election by secret ballot. The International desires that employees in the appropriate unit who were employed by the Company on January 6, 1941 , the date ITEM COMPANY 283 of the filing of the petition, should be eligible to participate in the election.- We shall, however, follow our usual practice and direct that the employees of the Company eligible to vote in the election shall be those in the appropriate unit employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to such limitations and additions as are set forth in said Direction. The Company laid off about 15 employees in the composing room on or about January 10, 1941, due to consolidation of its morning and afternoon newspapers. These employees were laid off on the basis of seniority and were informed that, if the Company required additional employees in, the future, they would be given "preference in reemployment in the order of their seniority. The International contends that these employees should be permitted to vote in the election. We are of the opinion that these laid-off employees, by virtue of their reemployment preference based upon their seniority, have a 'sufficiently continuing interest in the wages, hours, and working conditions of the Company as to entitle them to participate in the election.3 Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the rep- resentation of employees of Item Company, Limited, New Orleans, Louisiana, within the meaning of -Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All foremen, journeymen, printers, apprentices, and beginners employed in the composing room of the Company, excluding the general superintendent, the general superintendent's, secretary, and porters, constitute a unit appropriate for the purposes of collective bargaining, within the meaning 6f Section 9 (b) of the 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- 3 Cf Nashville, C h St. L. Ry v. Railroad Employees Department of American Federation of Labor et al, 93 F. (2d) 340, cert denied 303 U S 649 ; Matter of Diamond Iron Works and United Electrical Radio Machine Workers of America, Local 1140, 6 N. L. R B. 94; Matter,- of Unit Cast Corporation and Steel Workers Organizing Committee, 7 N L. R. B. 129; Matter of Metropolitan Engineering Co. and Metropolitan Device Corp and Local No. 1224 of United Electrical, Radio and Machine Workers of America ; Matter of Metro- politan Device Corp and International Brotherhood of Electrical Workers, Local Union, No 3, 8 N L R B. 670; Matter of American Cyanamid Co. and United Phosphate Workers' Union No 22036, A F. L, 19 N L R B 1026. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by ! the Board to ascertain representatives for the purposes of collective bar- gaining with Item Company, Limited, New Orleans, Louisiana, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Fifteenth 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 all foremen, journeymen, printers, apprentices, and beginners employed in the composing room of Item Company, Limited, who were employed by it during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, or otherwise laid off on the basis of seniority to be reinstated on that basis when business conditions warrant it, but excluding the general superin- tendent, the general superintendent's secretary, porters, and those who have since quit or been discharged for cause, to determine whether they desire to be represented by International Typographical Union, Unaffiliated, or by Bargaining Committee of the Composing Room Employees of the Item Company, Limited, for the purposes of collective bargaining, or by neither.