Evening News Publishing Co.

National Labor Relations Board - Board Decisions

Apr 13, 1951

93 N.L.R.B. 1355 (N.L.R.B. 1951)

EVENING NEWS PUBLISHING COMPANY 1355
The Intervenor contends that, because of the above-quoted pro-
visions, the contract continues in effect until April 1, 1952, and is there-
fore a bar.4
Because the petition was timely filed, we find that the over-all con-
tract does not constitute it bar to this proceeding; nor does the health
and welfare provision, considered separately as urged by the Inter-
venor, constitute a bar, as it does not contain other substantive pro-
visions concerning terms and conditions of employment.5
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act."
4. In accordance with the agreement of the parties, we find that all
employees of the Employer at its mill in Independence, Oregon, ex-
cluding office and clerical employees, guards, professional employees,
and supervisors as defined in the Act, constitute a unit appropriate for
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
"and Article X, Health and Welfare . . " The Intervenor claims that this alleged
omission was caused by a stenographic error. The Petitioner opposes the motion. We
do not deem it necessary to decide this motion because even if we were to allow the
correction and thus view the contract in a light most favorable to the Intervenor's
position, we would find the contract no bar for the reasons hereinafter discussed.
4 The Intervenor suggests that the whole contract should be treated as having the
termination date of Article X. We find no merit in this contention as the language
plainly indicates that the April 1, 1952, termination date should only apply to Article X.
6 See New York Butchers Dressed Meat Company, Division of Armour and Company,
81 NLRB 855 ; Texas Telephone Company, 93 NLRB 741; Laclede Gas Light Company,
76 NLRB 199 ( and cases cited therein).
BIn determining the contract bar issue raised in this case, the Board is not passing
on the survival of the health and welfare provision , nor on the rights of the parties
thereunder . See Pratt & Letchworth Co., Inc, 89 NLRB 124; Boston Machine Works
Company, 89 NLRB 59.
EVENING NEWS PUBLISHING COMPANY and DAYTON MAILERS UNION,
LOCAL 137, INTERNATIONAL MAILERS UNION,1 PETITIONER. Case
No. 9-RC-1116. April 13, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William A. McGowan, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
' Herein called Local 137.
93 NLRB No. 240.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Herzog and Members Murdock and Styles].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. The Employer urges as a bar to this proceeding its most recent
agreement with Local 137, which has been the contractual representa-
tive of mailing room employees since June 1947. By its terms the
contract is to remain in effect for 12 months ending June 19, 1951,
and thereafter for yearly periods unless terminated by a notice at least
60 days prior to the yearly expiration date.
The instant petition was filed on January 23, 1951, before the opera-
tive date of the renewal clause in the existing contract. As the latter
date is less than 1 month from the present time, we find that the con-
tract is not a bar to a present determination of representatives.2
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.3
4. Local 137 seeks a mailing room unit which, it asserts, is coex-
tensive with the contract unit, namely, all regular full-time and regu-
lar part-time mailing room employees, excluding the foreman and the
assistant foreman. The Employer differs in its interpretation regard-
ing the coverage 'of the contract and contends that the part-time em-
ployees should be excluded from the Unit .4 It also asserts that the
assistant foreman is not a supervisor and therefore should be included
in the unit.
Part-time employees.-There are 11 part-time employees who work
side by side with the other mailing room employees and perform the
same tasks as the latter, including taking papers from conveyors or
escalators, folding, labeling, wrapping, and tying bundles. As the
Board's unit finding is based upon occupational categories, all em-
ployees working regularly at jobs within the ambit of the unit are
necessarily included and entitled to representation, irrespective of the
2 Dictaphone Corporation, 90 NLRB 962
'Notwithstanding an employers current recognition of a petitioner , a question con-
cerning representation is created if a petitioner , as in the instant case, asserts its majority
standing , expresses a desne to secure a certificate , and files a formal petition for certifica-
tion with the Board . General Box Company , 82 NLRB 678.
4 the Employer maintains further that the Board should not decide the unit placement
of the part -tune employees lest its "collective bargaining privilege" be "impair[ed]" by
Board settlement of the issue in advance of negotiations for a new contract This conten-
tion is without merit , as it is the Board 's function under Section 9 (c) of the Act to
determine the composition of the unit.
EVENING NEWS PUBLISHING COMPANY 1357
number of hours of employment-5 We shall therefore include the
part-time employees in the unit., The separate issue of the voting
eligibility of the part-time employees is discussed below.
The assistant foreman.-This individual spends about 8 hours a
week doing mailing work and devotes the remainder of his time to
training new employees, making assignments, and seeing to it that
work is properly done. It is clear from the record that the assistant
foreman has complete supervisory authority in the absence of the
foreman, who is generally away about 2 days a week. As he serves
in this capacity for fixed and substantial periods of time, we find that
the assistant foreman is a supervisor and, as such, shall be excluded
from the unit.7
We find that all employees in the Employer's mailing room at Day-
ton, Ohio, including regular full-time employees, and regular part-
time employees, but excluding the assistant foreman, the foreman,
and other supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act."
5. The Employer takes the position that the part-time employees
should not be permitted to vote in the election directed herein. As
indicated above, these employees are regularly employed and report to
the mailing room at specified times. Despite their designation as
part-time employees, seven work 40 hours a week and overtime. The
other four average 8 hours or more a week on Saturdays. Those who
work a full week receive the same vacation and holiday benefits as the
regular full-time employees, who are selected from the part-time group.
All employees are on one payroll although the contract provides that
part-time employees are not covered by the wage scale set forth
therein. As the part-time employees have the same duties as the other
mailing room employees and work a substantial number of hours at
regularly assigned times each week, we find that they have sufficient
tenure of employment to be eligible to vote in the election.9
[Text of Direction of Election omitted from publication in this
volume.],,
5 Harms Hosiery Co, Inc, 91 NLRB 330, J C Penney it Company, 86 NLRB 920;
F. IV. Woolworth Company, 83 NLRB 439.
R In addition to the duties described supra, two employees in this group do about 3%
hours of cleanup work on some days of the week. As their interests are closely identified
with those of the other employees in the mailing department, we shall include them in
the unit Press, Incorporated, 91 NLRB 1360
7 Queen City Furnitui e Company, Inc, 87 NLRB 634 ; The Texas Company, Salem
Gasoline Plant, 85 NLRB 1211
Press, Incorporated, supra, The Post Piintsng it Publishing Co , 59 NLRB 1115
Haring Hosiery Co , Inc, supra, F. IV Woolworth Co, supra
Some of the part-time employees have additional jobs with other employers. This fact
does not preclude their right to vote, as they have a sufficient interest in the conditions
of employment at the Employer's mailing room to justify their participation in the
election The Post Printing it Publishing Co , sepia