Standard Magazines, Inc.

In the Matter Of , STANDARD MAGAZINES, INC., BETTER PUBLICATIONS, INC., ET AL. and BOOB AND MAGAZINE GuiLD, LOCAL 18, C. I. O. Case No. R4405.-Decided April 04, 1941 Jurisdiction : magazine publishing industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition pay roll requested by the union directed to be used since it is sufficiently recent to be practical in determining eligibility ; election necessary. Unit Appropriate for Collective Bargaining : all the employees of the Companies with the, exception of supervisory and managerial employees, advertising salesmen, outside salesmen, circulation department employees, and confidential employees whose interests lie with the Companies. Proskauer, Rose di Paskus, by Mr. Burton A. Zorn and Mr. Eugene, Gordon, of New York City, for the Companies. . Boudin, Cohn d Glickstein, by Mr. Sidney For, of New York City, for the Guild. Mr. Frederic B. Parkes, 2nd, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE - On May 1, 1940, December 12, 1940, and January 14, 1941, respectively, Book and Magazine Guild, Local 18, C. I. 0., herein called the Guild, filed with the Regional Director for, the Second Region (New York City) a petition, an amended petition, and a second •amended petition, alleging that a question affecting 'commerce had arisen concerning the representation of employees of Standard Magazines, Inc. and Better Publications, Inc., New York City, herein called the Companies, and requesting an investigation and certifica- tion of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act' On Feb- ruary 14, 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 Regu- lations-Series 2, as amended, ordered an investigation and author- 31' N. L. R. B., No. 43. 285 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On February 17, 1941 , the Regional Director issued a notice of hearing, copies of which were duly served upon the Companies and the Guild. On February 24, 1941, the Regional Director issued a notice of postponement of hearing . On March 14, 1941, the Re- gional Director issued and duly served upon the parties an 'order and notice of continuance of the hearing. Pursuant to such notice a hearing was held on March 18, 1941 , at New York City, before Martin I. Rose, the Trial Examiner duly designated by the Chief Trial Examiner . The Companies and the Guild were represented by counsel and participated in the hearing . Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the hearing, counsel for the Companies moved to dismiss the petition as amended. The Trial Examiner reserved ruling thereon. The motion is hereby denied. During the course of the hearing the Trial Examiner made various rulings on other 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. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES Standard Magazines , Inc. and Better Publications , Inc., two New York corporations,-are engaged in the business of publishing , selling, and, distributing over 40 magazines, generally known as pulps. Both Companies use the same office at 10 East 40th Street, New York City, have the same officers and directors for the most part, employ the same employees, and maintain a single - pay roll for such em- ployees. The magazines published, sold, and distributed by Stand- ard Magazines, Inc., are printed by independent printing contractors in the State of New York. Those of Better Publications , Inc., are printed by similar contractors in the States of New York, New Jer- sey, and Illinois. During the 6-month period immediately preceding January 29 , 1941, each Company sold and distributed in excess of one million copies of such magazines , of which approximately 30 per cent were shipped to places outside the States in which such magazines. were printed. The Companies employ approximately 34 employees. STANDARD MAGAZINES, INC. 287 II. THE ORGANIZATION INVOLVED Book and Magazine Guild, Local 18, is a labor organization affili- ated with the -Congress of Industrial -Organizations, admitting to membership employees of the Companies. - III. THE' QUESTION CONCERNING REPRESENTATION On April 23; 1940, the Guild requested the Companies to recognize it as bargaining representative of the majority of the Companies' employees. The Companies refused to grant such recognition until the Guild had been legally designated as the collective bargaining representative for the Companies' employees. A statement of the Regional Director, introduced in evidence at the hearing, shows that the Guild represents a substantial number of employees in the unit found below to be appropriate.' - We find that a question has arisen concerning the representation of employees of the Companies. 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 Companies 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. V. THE APPROPRIATE UNIT The Guild claims that an appropriate unit for the purposes of collective bargaining should include all employees of the Companies who work regular' hours in the office of the Companies at 10 East 40th Street, New York City, excluding supervisory and managerial employees, advertising salesmen, outside salesmen, and confidential employees whose interests are deemed to lie with the Companies.2 i The report of the Regional Director shows that of the 10 application cards, dated be- tween April 12-and April 22, 1940, filed by the Guild, seven are on the Companies' pay roll for the week of December 2, 1940. There are approximately 21 employees in the appro- priate unit 2 The original petition filed May 1 , 1940 , described the appropriate unit as-"editorial employees." The amended petition filed December 12, 1940 , designated the unit as "All employees of the company who worked regular hours of employment when the above em- ployer was located at 22 West 48th Street on April 19, 1940, exclusive of supervisory and managerial employees." The second amended petition filed January 14, 1941, sets forth the unit as "All employees of the company who work regular hours in the office of the company, exclusive of supervisory and managerial employees , advertising salesmen and outside salesmen " 288 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD The Companies contend that all employees, exclusive of supervisory and managerial employees, constitute an appropriate unit. Specifically, the Guild would include in the appropriate unit the following categories of employees : (1) nine editorial writers, whose duties consist in reading manuscripts and rendering judgment on them, copy, reading manuscripts, proofreading, story writing, and drafting of revision letters to authors, (2) three clerical employees who are engaged in, the opening and sorting of mail, typewriting, filing, and some phases of bookkeeping, (3) the make-up man who lays out the contents of the magazines, (4) the bookkeeper, (5) the switchboard operator, (6) the accountant for the circulation depart- ment, and (7) three office boys. All these employees work 371/2 hours per week at the Companies' office with the exception of two of the office boys who spend 2 days each week outside in the circulation department, checking records and returns. All are required to punch a time clock and observe regular hours of work. As to these employees, the parties are in substantial agreement and we find that the appropriate unit should include these employees. The Companies contend that all employees whose names apear on the pay roll list ending March 17, 1941, introduced in evidence, 'should be-included in the appropriate unit. The controversy be- tween the Companies and the Guild involves the following employees whom the Guild would exclude and the Companies include : (1) Two outside salesmen. G. R. Cannon is salesman for the Companies, with headquarters in Philadelphia, and O. C. Klein occu- pies a similar position on the Pacific Coast. , Since they rarely visit the New York office, it is obvious they have little if anything in common with the other employees of the Companies. We shall therefore exclude them from the unit 3 (2) Two advertising salesmen. Neither D. P. Riker, the adver- tising manager, nor H. Palmer, the advertising solicitor, punches the time clock. The nature of their work necessarily requires that they spend most of their time outside the Companies' office. Accord- ingly we shall exclude them from the unit.4 (3) Two circulation department employees. H. H. Oschay; the circulation manager, is out of the office about two days a week, checking on the distribution of the Companies' magazines. He is not required to punch the time clock. A. Signal, also engaged- in circulation work, spends most of his time at the office of the company 8 See Matter of Louis Weinberg Assoc. Inc. and United Wholesale and Warehouse Em- ; ployees, 13 N. L. R. B 66; Matter of B F. Sturtevant Co. and United Electrical & Radio Workers Local Industrial Union, 8 N L. R. B. 835. * See Matter of Brooklyn Datily Eagle and Newspaper Guild of New York, 13 N. L. R. B. 974. STANDARD MAGAZINES, INC. 289 that distributes the Companies' magazines, checking records and returns. He works in the Companies' office only 13 or 15 hours a week. Since it appears that H. H. Oschay has supervisory and managerial powers in respect to his department and that A. Signal has little contact with the persons included in the unit, we shall exclude them from the unit.5 (4) Two outside editorial writers. Both Mrs. E. R. McKeon and Mrs. R. R. Scott engage in the same type of work as the other editorial writers. Although they work, for the most part, outside the office, they are paid regular salaries comparable to the salaries paid the other editorial writers. We shall include them in the unit along with the other editorial writers. (5) Four executives and managing editors. In respect to L. Mar- gulies, the Guild claims that he is the managing editor of the Com- panies' magazines except for college magazines and astrology maga- zines. It appears from the record that the editorial writers work under his direction and supervision. He is not required to punch the time clock and receives a much higher salary than, do the editorial writers. In view of these circumstances, we shall exclude him from the unit.6 The Guild seeks to exclude R. A. Pines, - who is the brother of Ned Pines, publisher and executive of the Companies, for the reason that he is managing editor of College Humor and other college maga- zines. The publisher contends that all material for those magazines is submitted to him for approval and purchase, and that R. A. Pines merely does work similar to other writers. Although the evidence is conflicting as to the precise scope of R. A. Pines' authority, it appears that other employees assist him in editorial work on these magazines and that his name appeared on College Humor as editor until last year. However, his duties in respect to this magazine have not changed since then. R. A. Pines is also an attorney and does some legal work for the Companies. Furthermore, his salary exceeds that of the other editorial writers. In view of his close relationship to the publisher and other factors, we shall exclude him from the unit.? In-regard to Joseph Scott, son of Mrs. R. R. Scott,,whom the Guild seeks to exclude for the reason that he is an executive of the Companies, it appears from the record that his work is similar to See Matter of Seattle Post-Intelligence Department of Hearst Publications, Inc and Seattle Newspaper Guild, 9 N. L. R. B. 1262. See Matter of Brooklyn Daily Eagle and Newspaper Guild of New York, 13 N. L. R. B. 974. % ' See Matter of Western Union Telegraph Co. and Commercial Telegraphers Union, 17 N. L. R. B. 683; Matter of Louis Weinberg Assoc. Inc and United Wholesale and Warehouse Employees, 13'N. L. R. B. 66. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11 that of other editorial writers considered eligible for membership in the Guild. Moreover, he receives a salary considerably less than other editorial writers. We shall,include him in the unit. Tlie Guild would also exclude S. Ross, claiming that he is the art director of the Companies' magazines. The record shows, how- ever, that he has no executive powers, that he has no power to fix art prices, and that one of the editorial writers included in the unit by the Guild does some of this work. We shall include him in the unit. (6) Three confidential 'secretaries. From the record it appears that Miss M. Komarow, Miss S. Nansin, and Miss C. Schlier are private secretaries to L. Margulies, Ned Pines (publisher and execu- tive), and R. A. Pines, respectively. Although all of them engage in other types of work besides secretarial, it appears, nevertheless, that much of their work is of a confidential nature, since they do secretarial work for executives and managerial officials of the Com- panies. Therefore, we shall exclude them from the unit." We find that all the employees of the Companies with the exception of supervisory and managerial employees, advertising salesmen, out-' side salesmen, circulation department employees, and confidential employees who are closely identified with the management 9 consti- tute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Companies 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 which has arisen concerning representa- tion can best be resolved by, and we shall accordingly direct, an election by secret ballot. The Guild urged that the pay roll of March 14, 1941, the last before,the hearing, be used as a basis for determining eligibility to vote. The Companies requested the use of the pay roll nearest as possible to the election in determining eligibility. We find that the pay roll of March 14, 1941, is sufficiently recent to be practical in determining eligibility and shall direct that those employees in the appropriate unit whose names appear on the Companies' pay roll of 'March 14, 1941, subject to such limitations and additions as are set forth in the Direction shall be eligible to vote in the election. -- 8 Matter of Brooklyn Daily Eagle and Newspaper Guild of New York, 13 N L R B 974; Agwilines Inc. and Brotherhood of, Railway and Steamship Clerks, Freight Handlers, Ex= press and Station Employees , 12 N. L R. B 366 9 Specifically, G. R. Cannon, 0 C. Klein, D. P Riker, H Palmer, H. H Oschay, A. Signal, L. Margulies, R. A. Pines, M. Komarow , S. Nansin , and C. Schlier. STANDARD MAGAZINES, INC. 291 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 Standard Magazines, Inc. and Better Publications, Inc., New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the employees of the Companies with the exception of supervisory and managerial employees, advertising salesmen, outside salesmen, circulation department employees, and confidential em- ployees whose interests lie with the Companies, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) 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 Rela- tions 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 determine representatives for the purposes of collective bargaining with Standard Magazines, Inc. and Better Publications, Inc., New York City, an election by secret ballot shall be conducted as soon as possible but not later than'thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director-,for the Second Region, acting in this matter as agent for the -National Labor Relations Board, and subject to Article VIII, Section 9, of said Rules and Regulations, among all the employees of the Companies, whose I, ames appear on the Companies' pay roll of March 14, 1941, including employees who did not work during such pay-roll period because they were ill or on vacation, or in the active military service or training of the United States, or tempo- rarily laid off, but excluding supervisory and managerial employees, advertising salesmen, outside salesmen, circulation department em- ployees, and confidential employees whose interests lie with the Companies, and any employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Book and Magazine Guild, Local 18, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining. 441343-42-vol 31-20