Essex County News Co., Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1947

75 N.L.R.B. 697 (N.L.R.B. 1947)

In the Matter of ESSEX COUNTY NEWS CO., INC., EMPLOYER and
NEWSPAPER AND MAIL DELIVERERS ' UNION OF N. Y. &, VICINITY,
PETITIONER
Case No. 2-R-7650.-Decided December d9 , 1947
Mr. Edwin F . Korkus , of New York City, for the Employer.
Mr. Samuel Duker , of New York City , for the Petitioner.
Messrs. Emil Oxfeld and Sidney Birnbaum , of Newark , Ni. J., for
the Intervenor.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at New
York City on July 2 and 14, 1947, before Sidney Reitman, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Essex County News Co., Inc., a New Jersey corporation with its
principal office in Newark, New Jersey, is engaged in the purchase and
distribution of newspapers, magazines, and periodicals. During the
year preceding July 2, 1947, the Employer purchased newspapers,
magazines, and periodicals valued in excess of $1,000,000, of which
more than 50 percent was shipped to its place of business from points
outside the State of New Jersey.
We find that the Employer is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
The Petitioner is an unaffiliated labor organization claiming to
represent employees of the Employer.
75 N. L. R. B., No. 82.
697
698 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
Local No. 7, United Office & Professional Workers of America,
herein called the Intervenor, is a labor organization affiliated with the
Congress of Industrial Organizations, claiming to represent em-
ployees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer has declined to recognize the Petitioner as the ex-
clusive bargaining representative for certain of its employees because
of conflicting claims to representation on the part of the Petitioner
and the Intervenor , covering the same group of employees.
The Intervenor and the Employer contend that a contract entered
into between them on February 24, 1947, constitutes a bar to this
proceeding . In support of their contention , both the Employer and
the Intervenor take the position that the contract was executed prior
to a valid notice by the Petitioner of its claim to representation.
The evidence discloses that, following a conference on February
20, 1947, when the Petitioner attempted unsuccessfully to secure recog-
nition and to bargain with the Employer , the Petitioner, on February
27, 1947, mailed its petition for certification to the Board 's Regional
Office where it was received on the following day. However, pending
receipt from the Petitioner of supporting- designations requested by
the Regional Director , the petition was not docketed until March 4,
1947. Upon the assumption that the latter date was the date upon
which the petition was filed, the Employer and the Intervenor urge
that the Petitioner 's notice of its claim to representation , as disclosed
in its earlier conference with the Employer and the subsequent filing
of the petition for certification , is insufficient to prevent the February
24 contract between the Employer and the Intervenor from operating
as a bar to this proceeding . In support of their position , the Inter-
venor and the Employer rely upon the doctrine , announced by the
Board in the General Electric X-Ray case ,' to the effect that where a
petition is filed more than 10 days after the assertion of a bare claim
to representation and no extenuating circumstances appear, a valid
agreement which is executed in the interval constitutes a bar to an
election.
In the present instance , the record is clear that the petition was re-
ceived by the Board 's Regional Office on February 28, 1947, within 8
days from the Petitioner 's last claim to recognition as bargaining
representative , a fact which manifests due diligence on the part of the
Petitioner. The further fact that the petition was not docketed until
March 4, 1947, does not alter the date on which it was filed with the
1 See Matter of General Electric X-Ray Corporation , 67 N. L. R. B 997.
ESSEX COUNTY NEWS CO., INC. 699
Board's Regional Office .2 As it appears that the petition was filed
within 10 days from the assertion of the Petitioner's claim to repre-
sentation made prior to the execution of the contract in question, we
find that the Petitioner's notice of its claim to representation was
timely with respect to the execution of the above-mentioned contract.
Accordingly, we find that the contract does not constitute a bar to
the present proceeding.
The Employer further contends, relying upon the decision in the
Briggs-Indiana case,' that the Petitioner waived its right to represent
the return room employees under the terms of a bargaining contract
covering other employes, executed on January 2, 1946, and containing
among others a provision that these employees "shall not be under the
jurisdiction" of the Petitioner. As this contract apparently expired
on October 17, 1947,4 we have no occasion to consider the application
of the principle enunciated in the above case. Accordingly, we find
no merit in the Employer's contention.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 8 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, substantially in accordance with an agreement of the
parties, that all return room employees of the Employer, excluding all
supervisors, constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION 5
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Essex County News Co., Inc.,
Newark, New Jersey, 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, under the direction and supervision of the Regional
Director for the Second Region, and subject to Sections 203.61 and
203.62, of the National Labor Relations Board Rules and Regulations-
Series 5, among the employees in the unit found appropriate in Section
2 See Matter of Ameacan Radiator and Standard Sanatasy Copporation , 67 N. L. R B.
1135
3 Matter of Brtiggs-Indiana Corporation, 63 N L R B 1270
' There is no substantial evidence in the record that this contract has been extended
ben and its expiration date
5 Having failed to achieve compliance , or to initiate steps for compliance, with the
61mg requirements of Section 9 (f), (g), and (h) of the Act by October 31, 1947, the
Intervenor will not be accorded a place on the ballot.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV, above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, to determine whether or not
they desire to be represented by Newspaper and Mail Deliverers'
Union of N. Y. & Vicinity, for the purposes of collective bargaining.
MEMBERS HOUSTON and GRAY took no part in the consideration of
the above Decision and Direction of Election.