E. P. Dutton & Co., Inc.

In the Matter of E. P: DUTTON & Co., INC. and BOOK AND MAGAZINE GUILD, LOCAL 18, U. O. P. W. A. (C. I. 0.) In the Matter of E. P. DUTTON & Co., INC. and AMERICAN FEDERATION OF LABOR Cases Nos. R-2585 and R-0586.-Decided July 24,1941 Jurisdiction : book publishing industry. Investigation and Certification of Representatives : existence of questions : em- ployer refuses to recognize union ; election necessary. In view of necessity for election, intervening union adducing proof of slight membership permitted to participate therein. Unit Appropriate for Collective Bargaining : general office, professional and shipping department employees and salesmen, excluding certain named super- visory employees, secretaries to company officers, and temporary employees. Mr. Daniel Dimick, for the Board. Root, Clark, Buckner & Ballentime, by Mr. Ethan Alyea and Mr. Herbert N. Monkemeyer, of New York City, for the Company. Boudin, Cohn di Glickstein, by Mr. Leonard B. Boudin, of New York City, for the Guild. Mr. Sidney M. Feitelberg, and Mr. Edward K. Flaherty, of New York City, for the A. F. of L. and Local 20940. Mr. Bonnell Phillips, of counsel to the Board. DECISION DIRECTION OF ELECTION AND ORDER STATEMENT OF THE CASE On February 14, 1941, Book and Mazagine Guild, Local 18, U. O. P. W. A., (C. I. 0.), herein called the Guild, and on March 7, 1941, American Federation of Labor, herein called the A. F. of L., filed with the Regional Director for the Second Region (New York City) two separate petitions, each alleging that a question affecting commerce had arisen concerning the representation of employees of E. P. Dutton & Co., Inc., New York City, herein called the Company, and each requesting an investigation and certification of representa- 33 N. L. R. B., No. 134. 761 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 19, 1941, the Guild filed with the Regional Director an amended petition. On April 1, 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 Regulations-Series 2, as amended, ordered an investigation in each case and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice; and, pursuant to Article III, Section 10 (c) of said Rules and Regulations, ordered that the two cases be consolidated. On May 5, 1941, the Regional Director issued a notice of hearing in the consolidated cases, copies of which were duly served upon the Company, the Guild, and the A. F. of L. Pursuant to notice, a hearing was held in New York City from May 19 to 22, 1941, inclusive, before Edward Grandison Smith, the Trial Examiner duly designated by the Chief Trial Examiner. Dur- ing the course of the hearing the American Federation of Office Em- ployees, Federal Local 20940, affiliated with the A. F. of L., herein called Local 20940, filed a motion requesting leave to intervene in Case No. R-2585. This motion was granted by the Trial Examiner. All parties were represented by counsel or by union representatives and participated in the hearing. Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the hearing the Guild moved, solely for the purpose of clarification, to amend the description of the alleged appropriate unit contained in its amended petition. The motion was granted wthout objection. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has re- viewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. In the course of the hearing the A. F. of L. requested leave to withdraw its petition filed in Case No. R-2586. This request was referred by the Trial Examiner to the Board. The request is hereby granted. Pursuant to leave granted by the Board, briefs were filed by the Company and the Guild on June 7 and 9, respectively, which the Board has considered. Upon the entire record in the case, the Board makes the following : E. P. DUTTON & CO., INC. FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 763 E. P. Dutton & Co., Inc., is a New York corporation having its sole office and place of business in New York City. It is engaged in the designing, estimating, editing, writing, manufacturing, publishing, and selling of books. During the calendar year 1940 the Company purchased raw materials, consisting principally of paper, drawings, electroplates, engravings, binding dies, printings, and bindings, for use in its New York City office valued in excess of $294,000, of which materials approximately 26 per cent were purchased and shipped to said office from points outside the State of New York. During the same period the Company produced at its New York office finished products exceeding in value $713,000, of which products approximately 55 per cent were sold and shipped to points outside the State of New York. The Company admits, for the purpose of this proceeding, that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED Book and Magazine Guild, Local 18, United Office and Professional Workers of America, is a labor organization affiliated with the Con- gress of Industrial Organizations. It admits to membership em. ployees of the Company. American Federation of Office Employees, Federal Local 20940, is a labor organization affiliated with the American Federation of Labor. It admits to membership employees of the respondent. M. THE QUESTION CONCERNING REPRESENTATION Prior to the filing of its petition herein, the Guild requested that the Company grant it recognition as the exclusive bargaining agent for all employees of the Company in a unit alleged to be appropriate for collective bargaining purposes. The Company refused to recog- nize the Guild until it had been certified by the Board as bargaining agent. From a report prepared by the Regional Director and submitted in evidence at the hearing, it appears that the Guild represents a substantial number of employees in the collective bargaining unit, below found to be appropriate.' 1 The Regional Director stated that the Guild submitted 39 applications for membership, all of which bore signatures appearing to be original and genuine . Of these 39 applica- tions, a majority of which were dated in January and February 1940 , 26 bore the names 764 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 commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Company, the Guild, and Local 20940 are agreed that all gen- eral office, professional, and shipping department employees should be included in the appropriate unit. They are agreed and we find that temporary employees are not in the appropriate unit. The Guild would also exclude therefrom supervisory and confidential employees and salesmen. The Company and Local 20940, on the other hand, desire the inclusion of employees in these categories except that Local 20940, in opposition to the Company, would exclude G. M. Acklom, head editor. , Supervisory Employees The Company, although desiring the inclusion of all its employees in the appropriate unit, at the hearing designated, those of its em- ployees whom it considered as exercising supervisory functions. They are, as described in the record, G. M. Acklom, head editor; H. H. Ward, sales promotion department head; B. D. Recca, manufacturing department head; J. F. Kinneally, general office department head; J. J. Holwell, accounting department head; Florence Bowers, pub- licity department head; and F. Sheridan, shipping department head. It is urged by the Company that none of the above-named employees has the authority to hire, discharge, or discipline other employees of the Company although, as above stated, it is admitted that they do, of persons who appear on the Company's pay roll of May 16, 1941 There are approxi- mately 60 employees in the unit alleged to be appropriate by the Guild. The Regional Director 's report further stated that Local 20940, intervener herein, submitted certain application cards in proof that it represents a number of the Company's employees. Of the 10 cards so submitted,, all being dated in February 1941, and all bearing the names of employees on the Company's pay roll for May 16, 1941, 8 appeared to the Regional Director to bear genuine original signatures and 1, while unsigned , appeared "to have been filled in in the handwriting of the applicant." There are approximately 76 employees in the unit alleged by Local 20940 to be appropriate. E'. ' P. DUTTON & Co:, INC. 765 "to a substantial extent; supervise the work of the employees in their departments." In view of this statement we are of the opinion, and the record to some extent indicates' that regardless of their authority to impose "discipline," their recommendations concerning the work and conduct of the employees of,their departments necessarily carries substantial weight with the officers of the Company? All of them receive salaries in excess of those of the other employees in their respective departments. We shall exclude Acklom, Ward, Recca, Kinneally, Holwell, Bowers, and Sheridan from the unit .3 The Guild contends that certain other employees of the Company also exercise supervisory powers and should be excluded from the unit. Of these E. Holtsch is employed in the circular mailing de- partment, which has as its major function the addressing of adver= tising matter to persons whose names appear on lists already prepared. Holtsch apportions the task of addressing such circulars between her- self and the three other employees in the department. No check, however, is made by Holtsch on this work after its completion. While Holtsch receives a higher salary than other employees in the depart- ment, the Company ascribes this fact in part to her longer tenure of service with the Company. Approximately 90 per cent of Holtsch's working time is spent in the performance of duties identical to those done by the other employees of the department. We believe, on the basis of the facts above set forth, that the very limited supervisory power exercised by Holtsch does not warrant her exclusion from the appropriate unit. J. G. Winkler, whom the Guild would exclude from the unit, as a supervisory employee, is engaged in "credit work" and has under his supervision and control the preparation of monthly statements and the making of ledger entries. Three employees in the accounting department are engaged in this work. Winkler, according to the testimony of the Company's secretary and treasurer, sees that the work of these employees "is kept up to date." Their work is subject to Winkler's inspection and correction 4 We are of the opinion that 2In most instances applicants for employment in their respective departments will be interviewed by them prior to hiring. S The Company urges our consideration of the fact that the Guild in certain bargainink contracts with other New York publishing houses has included in the coverage clauses of those contracts all employees of the respective companies with certain exceptions not here material ; these contracts thus impliedly and in two instances specifically demon- strating • that the Guild has before bargained with respect to department heads and super- visors While the form which self-organization has taken elsewhere in an industry con- stitutes a factor for consideration in the determination of an appropriate unit, we do not regard this factor as necessarily decisive, especially where supervisory employees, whose interests we have consistently held to be closely allied with management , are concerned. 4 Winkler is also assigned a secretary who performs at Winkler 's direction and subject to his final approval certain work of a routine nature such as the preparation of "collection letters " The secretary also takes Winkler's dictation. ' 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Winkler is a supervisory employee and he will, therefore, be excluded from the unit.5 Local 20940, while contending for the inclusion of all supervisory employees with the exception of Acklom, urged at the hearing that D. H. Berry must be considered a supervisory employee, and that if supervisors other than Acklom were to be excluded from the appro- priate unit, a fortiori Berry must also be excluded. We do not concur with this argument." The Company's pay roll in listing its various departments combines under one heading "advertising and publicity." Florence Bowers, above excluded on the grounds of the Company's statement that she is considered a supervisory employee and the fact that she directs and otherwise controls the activities of other em- ployees, is denominated on the pay roll as head of the publicity depart- ment. Berry is named as head of the advertising department. Despite Berry's title, however, it is shown in the record that Berry has no supervision over any employee other than a part-time secretary. Berry's duties in the main are twofold; he prepares some of the Com- pany's advertising copy and he obtains suitable jacket designs for use on the Company's publications. Although Berry receives a high salary in relation to most of the employees in the unit, the salaries of certain editorial employees admittedly in the unit approach that of his. The Company and the Guild agree that Berry should not be considered a supervisory official. We find that Berry is in the appropriate unit. Confidential Employees Among the employees whom the Guild would exclude as confidential are three secretaries to officers of the Company.7 We have before held that such employees should be excluded from units composed primarily or in part of editorial or clerical employees." We shall exclude these employees from the unit. 6 The Guild in its brief also contends that F. S. Bennett, the Company's cashier, should be excluded on the grounds that he is both a supervisory and confidential employee. The record shows that Bennett has no subordinates. As indicated below, we are not impressed with the argument that he is a confidential employee . Bennett will be included in the unit. 6 Cf. our holding with respect to employees named Caldwell and Reid in Matter of Star- Times Publishing Company and American Federation of Radio Artists, St. Louis Local, 25 N L. R B. 492. ° B. Schwietzer is secretary to John McRae, president of the Company ; H. T. McGarry is secretary to John McRae , Jr., vice president of the Company ; L. J. Creighton is secretary to Elliot McRae, secretary and treasurer of the Company. 6 Matter of - Standard Magazines, Inc. et al. and Book and Magazine Guild, Local 18, C. I. 0, 31 N. L. R. B. 285; Matter of Agwnhnes, Inc. and Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees , 12 N. L. R. B. 366. In Matter of Brooklyn Daily Eagle and Newspaper Guild of New York, 13 N. L. R. B. 974, 986, where the Company desired the exclusion and the union the inclusion of private secretaries, we stated : We take notice of the fact that in negotiating and in other dealings concerning griev- ances, the interests of a union and the management are ordinarily adverse. The nature of a personal secretary 's work is such that much of the confidential material E. P. DUTTON & CO., INC. 767 The Guild would also exclude F. S. Bennett, the Company's cashier, on the ground that his duties are confidential in nature. On the basis of the facts contained in the record we see no merit in this contention. We find that Bennett is in the unit. ,Salesmen The Guild, in opposition to the Company and Local 20940, urges the exclusion of the Company's four salesmen. The record indicates that these employees spend approximately 40 to 70 per cent of the year covering assigned regional territories. The remainder of their time is spent in the Company's New York office where they do considerable work not dissimilar to that of other employees in the unit. As a gen- eral rule they have been promoted to their present positions from within the Company's office force. They are paid, like all other em- ployees of the Company, on a salary basis. Guild contracts in evi- dence show that the Guild represents salesmen in other New York publishing houses, with the exception in some instances of commission or otherwise specially paid salesmen. We shall include salesmen in the unit." We find that all general office, professional, and shipping depart- ment employees, and salesmen of the Company, excluding Acklom, Ward, Recca, Kinneally, Holwell, Bowers, Sheridan, Winkler, secre- taries to company officers, and temporary employees,10 constitute a unit appropriate for the purposes of collective 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. pertaining to the management passes through his or her hands. We believe that the management should not be required to handle such material through employees in the unit represented by the union with which it is dealing. Conversely, we believe that private secretaries should be excluded where, as in the instant case, one of the competing unions which may become the exclusive representative of certain of the Company's employees is of the opinion that the personal and confidential rela- tionship existing between the private secretaries, whom the Guild has not attempted to organize, and the Company 's officers is such as to create a possible division of their loyalties between the management and the potential bargaining agent. In view of our holding in the Brooklyn Eagle case, to decide otherwise would leave the employer the sole option as to whether such employees should or should not be included in an appro- priate unit , despite the union's vital interest in whom it shall represent. 9 See Matter of News Syndicate Co., Inc. and Newspaper Guild of New York, 4 N. L. R. B. 1071. 10 The temporary employees listed on the Company 's pay roll of May 16, 1941, which we herein adopt as a basis for determining eligibility to vote in the election which we shall direct, and who, therefore, will not be eligible to vote, are : V. Warrinick, J. Mulligan, V. Wurst, C. Pulaski, A. Wietman, and E. Theable. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VI. TILE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning representation can best be resolved by, and we shall accordingly direct, an election by secret ballot. Both the organizations involved and .the Company stipulated at the hearing that in the event of an election those eligible to vote should be the employees appearing on the Company's pay roll of May 16,1941, provided the election be held within 21/2 months from the close of the hearing. We shall adopt the stipulated pay roll as the basis for deter- mining eligibility and shall direct that the election be held within the stipulated period of time. The employees in the appropriate unit whose names appear on the Company's pay roll of May 16, 1941, subject to such limitations and additions as are set forth in the Direction, shall be eligible to vote in the election.t' The Guild objects to the participation of Loca120940 in the election on the ground that it has not adduced sufficient proof of or interest in this proceeding. Inasmuch as an election is to be conducted, and in view of the fact that Local 20940 has made some showing of member- ship, we shall accord it a place on the ballot.12 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 repre- sentation of employees of E. P. Dutton & Co., Inc., New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The general office, professional, and shipping department em- ployees and salesmen of the Company, excluding Acklom, Ward, Recca, Kinneally, Holwell, Bowers, Sheridan, Winkler, secretaries to company officers, and temporary employees, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of, the National Labor Relations Act. 11 A list of the employees appearing on the May 16 pay roll was submitted in evidence at the hearing. The list contains a notation under the heading "Sales Department" of a "salesman to be employed replacing Mr. Johnson." It was testified at the hearing that Francis Heidelberger had been employed in that capacity . It appears from the record that the parties contemplated, in the event salesmen were found a part of the appropriate unit, that Heidelberger should be permitted to vote in the election. We shall so direct. 12 See Matter of American Oil Company and Federal Labor Union # 22620 (A. F. L.), 33 N. L. R. B. 323; Matter of Harvill Aircraft Die Casting Corporation and International Union of United Automobile Workers of America, Local 863, C. 1. 0, 28 N. L. R. B. 417. E. P. DUTTON & CO., INC. DIRECTION OF ELECTION 769 By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIREOTED that, as part of the investigation authorized by the Board to determine representatives for the purpose of collective bargaining with E. P. Dutton '& Co., Inc., New York City, an election by secret ballot shall be conducted as soon as possible but not later than August 5, 1941, 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 III, Section 9, of said Rules and Regulations, among the general office, professional, and shipping department employees and salesmen of the Company whose names appear on the Company's pay roll of May 16, 1941, including also Francis Heidelberger 13 and 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 temporarily laid off; but excluding Acklom, Ward, Kinneally, Recca, Holwell, Bowers, Sheridan, Winkler, secretaries to company officers, temporary employees, and those who have since quit or been discharged for cause, to determine whether they desire to be represented for the purposes of collective bargaining by Book and Magazine Guild, Local 18, United Office and Professional Workers of America, affiliated with the Con- gress of Industrial Organizations, by American Federation of Office Employees, Federal Local 20940, affiliated with the American Federa- tion of Labor, or by neither. ORDER The American Federation of Labor having requested leave to with- draw its petition filed in Case No. R-2586, and the Board having granted said request, IT IS HEREBY ORDERED that Case No. R-2586 be, and it hereby is, closed. 13 See footnote 11, supra.