The Post-Standard Co.

In the Matter of THE POST-STANDARD COMPANY and INTERNATIONAL PRINTING PRESSMEN & ASSISTANTS' UNION OF NORTH AMERICA Case No. B-0618.-Decided August 13,1941 Jurisdiction : newspaper publishing industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord recognition to union until it proves majority ; election necessary ; petitioning international union's request for substitution of local union on ballot, granted. Unit Appropriate for Collective Bargaining : outside circulation employees of the Company, including city district managers, news dealers' and street- corner boys' supervisors, branch managers, country circulation employees, cir- culation managers , and outside circulation subordinate employees, excluding clerical and supervisory employees. Definitions Supervisors of street-corner boys and news dealers are employees within the meaning of the Act despite Company's contentions that they are inde- pendent contractors because of a change in the method of their payment where the Company controls and directs their activities and there has been no substantial change in the character of their work nor in their functional relation to the Company's business. Estabrook, Estabrook & Harding, by Mr. Charles S. Estabrook and Mr. J. P. Burns, Jr., of Syracuse, N. Y., for the Company. Ribyat, Walsh & Myers, by Mr. John J. Walsh, of Utica, N. Y., and Mr. David R. Evans, of New Hartford, N. Y., for-the International. Mrs. Augusta Spaulding, of counsel of the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 15, 1941, International Printing Pressmen & Assistants' Union of North America, herein called the International, filed with the Regional Director for the Third Region (Buffalo, New York) a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of The Post-Standard Com- pany, Syracuse, New York," herein called the Company, and request- 1 The name of the Company appeared erroneously on the petition and other formal papers They were amended at the hearing. 34 N. L. R B., No. 32. 226 THE POST-STANDARD COMPANY, 227 ing 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 May 21, 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 and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. . On May 22, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Interna- tional. Pursuant to notice, a hearing was held on May 29 and June 3, 1941, at Syracuse, New York, before Peter J. Crotty, the Trial Exami- ner duly designated by the Chief Trial Examiner. The Company was represented by counsel, and the International by counsel and a representative; both 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. 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 June 17, 1941, the International, and on June 18, 1941, the Com- pany, filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Post-Standard Company owns and publishes The Post-Stand- ard;a morning and Sunday paper, at Syracuse, New York. The Com- pany uses raw materials, 95 per cent of which consist of news print, metal, ink, and mats . Each year the Company uses 5,000 tons of news print, all of which is manufactured at Lyons Falls, New York. Dur- ing 1940 the Company used 183,896 pounds of ink, 50 per cent of which was bought from W. C. Herrick Company, which operates a plant in New Jersey where orders are received, and 50 per cent from Huber Company, which receives orders in New York City and operates one plant in New Jersey and one plant in the State of New York. All meal type used by the Company is manufactured at Brooklyn, New York. Fifty-five hundred mats which were used in the first 4 months of 1941 came from points outside the State of New York. The cost of mats is less than .2 of 1 per cent of the total cost of supplies and equipment. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company maintains no reporting staff except in Syracuse and neighboring towns. It uses wire reports of the Associated Press and no other wire service. All the news picked up by the Associated Press anywhere in the world flows to its distribution point in New York City. The Post-Standard daily averages 160 columns of news, the majority of which comes from the Associated Press. On request the Company supplies news to the Associated Press. The Company uses the following feature services : North American Newspaper Alli- ance, New York News Syndicate, Bell Syndicate, United Feature Service, George Matthew Adams, McClure Syndicate, King Feature Service, F. J. Markey Syndicate, McNaught * Syndicate, Chicago Tribune, and Associated Newspapers. Some of these services supply newspapers throughout the country. At the time of the hearing the daily circulation of The Post- Standard amounted to 77,805, the Sunday circulation to 98,105. Of this circulation .0048 per cent of daily papers were sold outside the State of New York; .0019 per cent of Sunday papers were sold out- side of the State of New York. During the first 4 months of 1941, 35 per cent of space in the daily papers and 18 per cent of space in the Sunday papers represented advertising. National advertising represents less than 5 per cent of the total advertising received from sources outside the State of New York. H. THE ORGANIZATION INVOLVED International Printing Pressmen & Assistants' Union of North America is a labor organization, affiliated with the American Federa- tion of Labor. It admits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In April 1941 a representative of the International met with repre- sentatives of the Company and asked for recognition as bargaining representative of employees in the circulation department. The Com- pany demanded proof of the International's majority among such employees. The International, thereupon, filed the petition in this proceeding. A statement prepared by the Regional Director and introduced'into evidence discloses that the International has a substantial membership among such employees.2 We find that a question has arisen concerning the representation of employees of the Company. 2 In support of its claim to represent a majority of employees in its proposed unit, the International submitted to the Regional Director 25 applications for membership, of which 1 is dated December 1936; 19, April 3, 1941; and 5, undated. The cards appear to bear genuine signatures. There are about 36 employees in the appropriate unit. THE POST-STANDARD COMPANY 229 W. 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 and the International agree that city district man- agers, branch managers, and country circulation employees belong in an appropriate bargaining unit of outside circulation employees. They disagree whether certain individuals fall within such categories and whether certain supervisory and clerical employees should be included in the unit. They further disagree whether, supervisors of news dealers and street-corner boys belong in the circulation unit. A. Employees serving the entire circulation department The following employees serve the entire circulation department : J. E. Estabrook, director of the department, who hires and discharges circulation employees and supervises all activities of the department; N. E. Billhardt, cashier, and R. B. Waters, assistant cashier of the department, who are inside and clerical employees; and W. J. Oran, who is in charge of galley lists in'the department, checking the number of papers going out to various communities and noting additions and cuts in the paper's circulation.3 The International desires to exclude, and the Company to include, these four employees from the bargaining unit. Estabrook's work is supervisory and the work of the other three employees is clerical in character. We shall follow our usual custom and exclude these super- visory and clerical employees from a unit of employees actively engaged outside in promotion of the circulation of The Post-Standard. B. City district managers Within company-assigned districts, city district managers solicit new business, supervise the distribution of The Post-Standard by news carriers and their collection of money from subscribers. The Com- pany distributes papers to carriers by truck. Each manager takes care of complaints with respect to circulation by carriers within his area. " Oran is primarily an inside and office employee . He also delivers bundles of papers to the New York Central Railroad, but the record does not disclose in what quantity or.at what times such deliveries are made. 461268-42-vol. 34-16 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD City district managers are salaried employees. They receive vacation with full pay. The Company and the International agree that city district managers should be included in the bargaining unit. Charles K. Bockey, assistant to Estabrook, directly supervises city district managers and sometimes substitutes for them., The Interna- tional desires to exclude, the Company to include him in the unit. Since he is clearly a supervisory employee, we shall exclude him from the unit. C. Supervisors of news dealers and street-corner boys Four circulation men, called supervisors of street-corner boys and news dealers, were salaried employees on the Company's pay roll until 1937. In 1937 the Company made a different financial arrangement with them. Under such arrangement the Company sells them news- papers at wholesale rates. They are billed weekly for such papers and given credit for unsold papers which they.return. They resell these papers to news dealers and street-corner boys. Although the evidence is contradictory whether the price of the resale of papers to dealers and newsboys is fixed by the Company, it appears to be uniform. Super- visors solicit dealers for the resale of such papers. The Company, assigns street corners within the city to the exclusive use of each supervisor. Three of the four supervisors receive a regular salary from the Company for ,making deliveries of papers within and outside the city in their own cars, upon which the Company pays part of the insurance premiums. The fourth uses the Company truck or his own car for deliveries for papers which he resells without specified compensation for such service. In connection with their distribution of newspapers, supervisors dis- tribute, at Estabrook's direction, cards advertising features in The Post-Standard. They furnish aprons to newsboys and collect used aprons from newsboys for further use by inside employees of the Com- pany. They hire their own substitutes for vacation periods, subject to the approval of the Company. The Company allows $20 to each supervisor toward this expense. Supervisors attend weekly meetings, over which Estabrook pre- sides, at which problems of promotion are discussed' and comparative circulation figures made public. Supervisors are praised or taken to task at these meetings. They report weekly the numbers of news dealers and street-corner boys which they serve. The results of their sales are checked and compared by the Company. Explanations are asked for declines in sales or increases in returns for credit. The evi- dence is contradictory whether attendance at these Wednesday meet- ings is voluntary. The Company does not allege that such attendance is irregular. THE POST-STANDARD COMPANY 231 Although the Company contends that in 1937 the relation between these supervisors changed from that of employees to independent con- tractors, it does not appear that there was at that time any substantial change in the character of their work and its functional relation to the business of the Company. The weekly meetings between the Com- pany and these news dealers indicate the extent of the Company's control of its news distribution and the close association between Esta- brook and the supervisors . There is nothing to indicate that the Company exercises less control over the policies of the distribution of its papers through news dealers and street-corner boys than it does through news carriers to the homes of its subscribers. Complaints on the service of the paper from news dealers and patrons of street- corner boys are handled through the Company's office in the same way as such complaints; are handled when they arise from the news carriers' service. The Company has instructed one supervisor to sat- isfy a complaint made against another's service. The fact that in 1937 the Company changed the method of paying these supervisors does not in itself indicate a change in their relation to the Company. We find that the Company presently directs and controls their activities in distributing The Post-Standard and promoting its circulation. In view of the broad meaning of the word employee as used in the Act, and the declared policies and purposes of the statute, we find that such supervisors are employees of the Company within the meaning of Section (3) of the Act. We shall include them in the bargaining unit.' D. Branch circulation managers The Company and the International agree that branch circulation managers at Cortland, Ithaca, Oneida, Rome, and Seneca Falls, New York, should be included in the appropriate unit. Such managers distribute The Post-Standard to carrier boys in the community and remit money for such papers to the Company . They are ,carried on the Company's pay roll as salaried employees , but derive additional profit from sales of the paper, which they promote. Roy LaFave is a circulation employee at Malone, New York. He also secures rural subscriptions for the Company . At the hearing the International classed LaFave with the three subordinate employees mentioned below for exclusion . At the hearing the International stated that it had no information concerning LaFave's work. The Company alleges that La Fave is branch manager at Malone. We find that LaFave is a branch manager and is properly included with other branch managers in the bargaining unit. 4 See Matter of Seattle Post-Intelhgencer Department of Hearst Publications , Inc., and Seattle Newspaper Guild, Local No 82, 9 N. L R B 1262 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Edward Hixson, assistant to Estabrook, supervises branch man. agers and country circulation employees. In emergencies, he substi- tutes for branch managers. The international desires to exclude him, and the Company to include him in the unit. Since he is primarily a supervisory employee, we shall exclude Hixson from the bargaining unit. E. Outside circulation subordinate employees Three employees, Paul Mulcahy, Frank Pagliarli, and Herbert Todd, are outside circulation men. They are subordinate employees and not branch managers. They canvass and solicit business for the Company. Todd works in the Ithaca office as assistant to Branch Manager Conboy. Pagliarli and Mulcahy solicit business out of their homes at Watertown and Auburn, respectively: Mulcahy has sub- stituted for branch managers and assists his father, circulation man- ager at Auburn. The three employees are salaried employees under the immediate supervision of $ixson. They are hired by Estabrook. The International desires to exclude these employees because they are subordinate employees. The Company desires to include them. Since they do the same type of work as branch managers, we shall include them in the appropriate unit. F. Circulation managers The branch managers noted above are listed on the Company's pay roll. Four circulation managers, Murphy at Fulton, Shanahan at Fulton, Carpenter at Oswego, and J. Mulcahy at Auburn, are not listed on the Company's pay roll as branch managers. The Company contends that they are independent contractors. The International contends that they are employees and branch managers and that there- fore they should be included in the appropriate unit. Each of these four circulation managers is supplied with an office and telephone by the Company. Paid correspondents of the Company also work from these offices. Each'manager submits a weekly expense account to the Company. Such expense accounts include items for transportation of papers, office-boy help, adjustment for the sale of papers at unusually low prices to boys who deliver them unusually great distances, weekly premiums to news boys, and supplies. The Company sets no geographical limitation upon the area in which these circulation managers work. The record does not indicate that it ex- tends beyond the community served at each town. Although the Company contends that these managers are not limited to the handling of The Post-Standard, the record does not disclose that any manager handles another newspaper. Each manager carries an open account with the Company for papers which are sold him at wholesale rates. THE POST-STANDARD COMPANY 233 Credit is given for papers not resold. Each manager resells his papers to news boys for further resale by them. Such resale prices appear to be uniform. The managers' income from the circulation department is derived entirely from this sale and resale of papers.5 Hixson keeps track of the Company's circulation under each of these circulation managers. Each manager submits to him.a weekly report of distribution, sales, rates, and cash, similar to reports submitted by branch managers who are admittedly employees of the Company. Circulation managers share in circulation-promotion devices and con- tests. They attend weekly meetings. Although the Company con- tends that their attendance is voluntary, the managers believe that it is required of them. They are permitted to include on their weekly expense accounts items for the cost of such attendance. The Company pays for a vacation substitute for each circulation manager. He arranges with Hixson for a mutually convenient time for his vacation. The Company contends that there is a degree of difference between the supervision which Hixson gives to salaried branch managers and his supervision over these four circulation managers, but the record does not disclose any such difference. We find that the four circula- tion managers are employees of the Company and shall include them with branch managers in the bargaining unit. We find that outside circulation employees of the Company, in- cluding city district managers, news dealers' and street-corner boys' supervisors, branch managers, country circulation employees, circula- tion managers, and outside circulation subordinate,employees, but ex- cluding clerical and supervisory employees, constitute a unit appro- priate 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 .6 VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation of employees of the Company can best be resolved by, and we shall accordingly direct, an election by secret ballot. Those eligible to vote in the election'shall be employees in the ap- propriate unit who were employed during the pay-roll period im- mediately preceding the date of our Direction of Election, subject to such limitations and additions as are set forth in the Direction of Election. ' Additional income may be derived from the news and advertising departments of the Company, for occasional reporting and advertising services, respectively. 9 Employees included within the appropriate unit at the time of the hearing are listed in Appendix A. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 22, 1941, the International chartered Syracuse Outside Circulation Employees Union No. 392, which admits to membership employees of the Company. The International requests that this local union be designated in place of the International on the ballot. We shall grant the request. 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 The Post-Standard Company, Syracuse, New York, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. Outside circulation employees of The Post-Standard Company, Syracuse, New York, including city district managers, news dealers' and street-corner boys' supervisors, branch managers, country circula- tion employees, circulation managers, and outside circulation sub- ordinate employees, but excluding clerical and supervisory employees, constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of 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 Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DmECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with The Post- Standard Company, Syracuse, New York, 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 Third 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 outside circulation employees of the Company who were employed dur- ing the pay-roll period immediately preceding the date of this Direc- tion of Election, including city district managers, street-corner boys' and news dealers' supervisors, branch managers, country circulation employees, circulation managers, outside circulation subordinate, em-_ ployees, and employees who did not work during that 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 supervisory and clerical employees and employees who have since quit THE POST-STANDARD COMPANY 235 or been discharged for cause, to determine whether or not said em- ployees desire to be represented by Syracuse Outside Circulation Em- ployees Union No. 392 for the purposes of collective bargaining. APPENDT% A Donald H. Miller Fred M. Seamon Joseph Greco Paul E. Towsley Ephriam L. Weisman Leon L. Prentiss Melvin D. Rose City District Managers James E. Smith William A. Roberts John A. Coyle, Jr. William J. McNamara Peter J. Haley Ralph Monticello Harry Goldberg News dealers' and street-corner boys supervisors F. LaVenture J. Castellani H. Ardner L.r,Hale Branch Circulation Managers Lauren W. Herbst-Rome R o b e r t M. Flickinger-Seneca John F. Buckley-Oneida Falls Louis L. Vasse-Cortland Roy G. LaFave-Malone John J. Conboy-Ithaca Country Circulation Employees Joseph H. Holliday Harry F. Pratt Gordon D. Barrows Ivan S. Evans George W. Billhardt Jerry F. Reilly Clifton D. Symonds Circulation Managers Joseph Mulcahy-Auburn R. Carpenter-Oswego R. Shanahan-Fulton L. Murphy-Fulton Outside Circulation Subordinate Employees Paul Mulcahy-Auburn Frank Pagliarli-Watertown Herbert W. Todd-Ithaca