Manson News Agency, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1951

93 N.L.R.B. 1123 (N.L.R.B. 1951)

MANSON NEWS AGENCY, INC. 1123
both at the credit and main offices. While it is true that there is
little evidence of interchange between the two offices, it is also true
that the record presents little evidence of interchange generally among
the various clerical departments. The record also discloses that terms
and conditions of employment are the salve for all office and clerical
employees, and that seniority, originally on a departmental or cate-
gory basis, has recently been changed to apply on an office-wide basis
wherever practicable.
In view of the foregoing, and particularly in view of the uninter-
rupted course of collective bargaining on a single-unit basis in recent
years,5 we are of the opinion that only a single unit of all clerical
employees is appropriate.'
Accordingly, we find that the following employees of the Employer
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act: all office and clerical
employees employed at the Employer's credit and principal offices in
New York City, excluding guards and supervisors as defined in the
Act.
[Text of Direction of Election omitted from publication in this
volume.]
8 See Namm's Inc., 81 NLRB 1019; Poultry Producers of Central California, 78 NLRB
1067; The Wichita Transportation Company, 90 NLRB No. 70.
N See Chrysler Corporation, 76 NLRB 55; Aluminum Company of America, 61 NLRB 1066,
1070. See also, 31cier S Frank Company, 86 NLRB 517.
MANSON NEws AGENCY, INC. and OFFICE EMPLOYEES INTERNATIONAL
UNION, LOCAL No. 34 (AFL), PETITIONER. Case No. 3-RC-573.
April 2,1951
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 J. Cavers, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
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-member
panel [Chairman Herzog and Members Houston and Reynolds].
Upon the entire record in this case, the Board finds :
1. The Employer is a wholesale distributor of newspapers and mag-
azines in the city of Rochester, New York. In 1949, the Employer
purchased newspapers, magazines, and playing cards valued at about
$956,000, of which approximately $325,000 represented shipments to
93 NLRB No. 202.
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it from points outside the State of New York. Of the out of the
State purchases, approximately $86,000 represents credits for maga-
zines and newspapers, or the front covers of them, which were shipped
back as returns to their point of origin outside the State.' All the-
Employer's sales were made within the State.
The Employer's distribution of magazines is in accordance with
contracts in force between the Employer and 16 different national
distributors of periodicals, most of which maintain their principal
offices in New York City. About 75 percent of these contracts spe-
cifically provides that the Employer shall not have any exclusive terri-
torial rights. The remaining contracts are silent on that point.
Nevertheless, in all of the contracts the Employer is assigned to speci-
fied territory.2 Irrespective of contract rights, the fact is that the
Employer has for 50 years been practically the only wholesale distrib-
utor of magazines in the city of Rochester.'
By the terms of its 16 contracts, the Employer's business is subject
to very substantial control by the publishers of the magazines which
it distributes. The price at which the Employer sells the magazines
to retailers is established by the publishers. The Employer is re-
quired to make delivery of the periodicals on the dates specified by the
publishers, to refrain from selling or displaying any of them before
those dates and, in the case of some magazines, to prevent the retailers
from doing so. All the magazines must remain on sale until "off-sale"
dates established by the publishers.
The Employer must make checkups, at least once or twice during
the sale period of each magazine, to ascertain the quantity of unsold
copies remaining in the hands of each retailer. It must make regu-
lar reports of this information to the publishers. It must redistribute
the magazines between retailers and resupply them, so that none have
too many or too few.
The Employer must distribute advertising matter furnished by the
publishers.4 It must furnish publishers with up-to-date lists of all
retailer customers, together with the number of copies of each maga-
zine furnished to each one, and any other information requested. It
is required to mutilate all copies remaining unsold on the "off-sale"'
dates. If its services are not satisfactory, its status as a distributor
may be terminated by the publishers with little or no notice.
' Only in exceptional cases were the whole magazines returned . Normally just the front
covers, or just the headings of the front covers, were sent back for credit.
2 Most of the contracts contain an express provision barring the Employer from making
any sales to retailers outside the territory assigned . Because all of the contracts are
printed forms , a fact which indicates that they are in general use in the magazine
publishing industry, it is reasonable to conclude that all other wholesalers of the same
periodicals are similarly barred from entering the Employer 's territory.
3Its only competitor, American News Company , sells only to outlets of Union News
Company.
4 By at least one contract the Employer is required to check the retailers to, make
sure that they are making proper use of the advertising materials furnished.
MANSON NEWS AGENCY, INC. 1125
We find that the Employer is engaged in commerce within the mean-
ing of the Act. We further find that the employer possesses what
amounts to exclusive franchises for the sale of nationally distributed
periodicals within the Rochester area. Because of these virtual fran-
chises,,; and the substantial control exerted by the publishers over the
employer's operations,6 we find that the Employer's business is an in-
tegral part of the multistate distribution systems of the publishers
whose periodicals the Employer handles. We therefore find that it
would effectuate the policies of the Act to take jurisdiction in this
case.'
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to represent a unit composed of all office and
clerical employees, excluding checkers and supervisors. The checkers,
whom the Employer would include, spend more than 80 percent of
their time outside the office, driving from one retail news dealer to
another, making inventories of the number of unsold magazines at
each location, resupplying the retailers, and transferring magazines
from one to another. Unlike the office employees, they are paid a
weekly salary and are not required to punch a time clock. Although
checkers on infrequent occasions do office work, none of the office em-
ployees are ever assigned to checking. We find that the checkers have
little community of interest with the office employees and shall ac-
cordingly exclude them from the unit.
The Employer would include, and the Petitioner exclude, three
persons whose supervisory status is in issue, namely : Yount, Sanow,
and Wildman. Three of the office employees testified that it was Yount
whom they notified when they were ill or when they desired time off
for any other reasons. One of the employees does practically all her
work under Yount's direction. The record shows, furthermore, that
the Employer delegated to Yount the power to decide which appli-
cants were suitable to be given a period of trial employment with the
Company and that she exercised that power on at least two occasions.
We find that she is a supervisor and shall exclude her from the unit.
Although Sanow and Wildman sometimes give instructions to other
employees and transfer them from one kind of work to another, neither
participate to the same extent as Yount in the distribution of work
among the office employees; nor do they, like her, participate in the
selection of new employees. The instructions which they give are
'Squirt Distributing Company, 92 NLRB 1667.
6 Holm Tractor d Equipment Company, 93 NLRB 222, Baxter Brothers, 91 NLRB
1480
1 The Borden Company, Southern Division , 91 NLRB 628.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merely those which any more experienced employee would naturally
give to those less experienced. We find that they are not supervisors
and shall include them in the unit.
We find that all office and clerical employees 8 at the Employer's
place of business in Rochester, New York, excluding checkers and su-
pervisors 9 as defined in the Act, constitute a unit appropriate for the
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.]
8 Including David Wildman and Winnie Sanow.
9 Including Alice Yount.
S. J. HAWLEY AND J . H. PATRIDGE D/B/A W. HAWLEY & COMPANY and
CHARLES C . COMBS AND NELSON L. ELLIS LOCAL 22, BRIDGE STRUC-
TURAL AND ORNAMENTAL IRONWORKERS OF INDIANAPOLIS , AFL and
CHARLES C . COMBS AND NELSON L. ELLIS. Cases Nos. 35-CA-136,
35-CA-138, 35-CB-23 , and 35-CB--S1. April 3, 1951
Decision and Order
On November 15, 1950, Trial Examiner John Lewis issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interlne-
diate Report attached hereto. Thereafter, the Respondent Company
filed timely exceptions to the Intermediate Report and a supporting
brief,
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-member
panel [Members Houston, Murdock, and Styles].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the Respondent Company's exceptions and brief, and
the entire record in the case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner, with the modifi-
cations and additions set forth below :
1 At the request of the Respondent Union , the Board extended the "date for receipt
of exceptions and briefs in Washington" to December 18, 1950. No exceptions in behalf
of the Respondent Union were received within the time allowed . On December 21, 1950,
the Board received exceptions from the Respondent Union, which were rejected as
untimely . These exceptions have not been considered because they were not timely filed.
The Ann Arbor Press, 91 NLRB 1291 ' The notion for reconsideration of the Board's
action in rejecting the untimely exceptions is hereby denied.
93 NLRB No. 181.