Star Publishing Co.

National Labor Relations Board - Board Decisions

Jun 13, 1947

74 N.L.R.B. 120 (N.L.R.B. 1947)

In the Matter Of STAR PUBLISHING COMPANY, EMPLOYER and CzRcu-
LATION DEPARTMENT EMPLOYEES OF THE INDIANAPOLIS STAR,
PETITIONER
Case No. 11-R-1140.-Decided June 13,1947
Barnes, Hickam, Pantzer do Boyd, by Mr. Frederic D. Anderson, of
Indianapolis, Ind., for the Employer.
Messrs. Nathan Swaim and George Ross, of Indianapolis, Ind., for
the Petitioner.
Issermana, Isserman d Kapelsohn, by Mr. Morris Isserman, of
Newark, N. J.; and Mr. William Blatz, of New York City, for the
Intervenor.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION
Upon a petition duly filed,' the National Labor Relations Board,
in accordance with its Rules and Regulations-Series 4, conducted
on July 31, 1946, a prehearing election among employees of the Em-
ployer, in a unit alleged to be appropriate, to determine whether they
desired to be represented by the Petitioner, or by the Intervenor, for
the purposes of collective bargaining, or by neither.
At the close of the election, a Tally of Ballots was furnished the
parties. The Tally shows that there were approximately 75 eligible
voters; and that 71 cast ballots, of which 32 were cast for the Peti-
tioner, 32 for the Intervenor, and 1 for neither, and 6 were challenged.
Thereafter, pursuant to its Rules and Regulations, the Board pro-
vided for an appropriate hearing upon due notice before Arthur R.
Donovan, hearing officer. The hearing was held at Indianapolis,
Indiana, on September 12 and 13, and October 14, 15, 16, and 17, 1946.
The rulings of the hearing officer are free from prejudicial error and
are hereby affirmed. The Employer's request for oral argument is
denied, inasmuch as the record and briefs, in our opinion, adequately
present the issues and positions of the parties.
1 The petition and other formal papers were amended at the hearing to show the correct
name of the Petitioner.
74 N. L. R. B., No. 29.
120
STAR PUBLISHING COMPANY 121
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Star Publishing Company, an Indiana corporation, has its office
at Indianapolis, Indiana, where it publishes Sunday and daily news-
papers of general circulation.
For its Indianapolis plant, which is the only plant involved in the
instant proceeding, the Employer annually purchases, from sources
outside Indiana, newsprint and ink valued in excess of $30,000. The
Employer's annual revenue exceeds $250,000, of which three-fifths
is secured from the sale of advertising and 15 percent represents
advertising sales outside Indiana.
The Employer uses the news services of the Associated Press, United
Press, North American Newspaper Alliance, King Features, and other
syndicates providing news and photographs.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is an unaffiliated labor organization, claiming to
represent employees of the Employer.
Indianapolis Newspaper Guild, herein called the Intervenor, is a
labor organization affiliated with the Congress of Industrial Organiza-
tions, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
Iv. THE APPROPRIATE UNIT
The Employer, the Petitioner, and the Intervenor generally agree
that employees in the Employer's circulation department at Indian-
apolis, excluding confidential and supervisory employees, constitute
an appropriate bargaining unit .2 The Employer and the Petitioner
2 Employees in the editorial and maintenance departments are presently represented by
the Intervenor herein. Employees in other departments at the Employer's Indianapolis
plant are variously represented by five other labor organizations who bargain with the
Employer on craft or departmental bases.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would include in the unit district managers, zone supervisors, and the
secretary to the circulation director. The Petitioner would exclude,
and the Employer include, the street sales manager. The Intervenor,
contending that district managers and zone supervisors are supervisory
employees and that the secretary to the circulation director is a con-
'fidential employee, would exclude employees in these categories from
the proposed bargaining unit. The Intervenor would include, in a
second separate unit, district managers and county road men, exclud-
' ing zone supervisors. The Intervenor contends that the street sales
manager occupies a position comparable to that of a district manager
and that the unit placement of employees in these two categories should
be the same.3 The Intervenor questions the unit placement of the
,mail subscription manager; the Employer and the Petitioner would
include the mail subscription manager in the bargaining unit.
The Employer's circulation department, the only department of the
Employer 's operations immediately involved herein, is concerned
with the distribution of its newspapers, under the general charge and
control of a circulation director and an assistant circulation and pro-
motion director. The jurisdiction of both these administrative officers
extends over the city and country distribution of the Employer's news-
papers. The next ranking administrative employees in the depart-
ment are a country circulation manager and a city circulation manager.
Employees involved in this proceeding are under the circulation
director and his assistant and the city circulation manager , and have to
do with the distribution of the Employer's newspapers within the city
of Indianapolis. These employees include approximately 20 clerical
employees, who work in the Employer's offices, keeping and processing
circulation records; 28 district managers, who are responsible for the
delivery of newspapers to the homes of the Employer's subscribers in
Indianapolis; 4 zone supervisors, who serve as instructors and group
leaders in the 4 zones , into which the city area is divided for distribu-
tion purposes; and the street sales manager who is responsible for the
sale of newspapers by newsboys on the street corners in Indianapolis.
'Inasmuch as the Intervenor participated in the prehearing election noted above, and
did not at the preelection conference object to the inclusion of district managers in the
group of eligible voters , or thereafter challenge district managers who voted in the election,
the Employer contends that the Intervenor may not now question the proper unit place-
ment of district managers . We do not agree. Neither a prehearing election nor partici-
pation therein precludes any party from raising any issue relevant and material to
investigation of a petition pending before the Board . Moreover, in the instant case, the
Intervenor contends that, at the time of the prehearing election , it agreed that the Em-
ployer's district managers were properly part of the proposed unit and that , for this
reason, it did not challenge district managers who voted in the election , but that its
present change of position regarding them is predicated upon its interpretation of the
Board's decision in Matter of Boston Herald -Traveler Corporation, 70 N. L . R. B. 651,
wherein branch managers were found to be supervisory employees and excluded from the
unit, as noted below.
STAR PUBLISHING COMPANY 123
District managers and zone supervisors
Prior to November 1945, the Employer divided the area within In-,
dianapolis for circulation purposes into 12 circulation districts, each
headed by a district manager with one or more "key men" as assist-
ant to him. These district managers, assisted by their key men, were
responsible directly to the circulation director and his assistant for
the distribution of the Employer's newspapers to subscribers' homes
within the area described in their respective districts. The 12 district
managers worked directly out of the Employer's main office, where
they deposited their records and money, received orders, and dis-
cussed problems about their work.
In November 1945, the Employer instituted a change of administra-
tion. Charge of city circulation was placed directly in the hands of
a city circulating manager, formerly a district manager. The city
was divided into 28 distributing districts, and these districts were,
grouped into 4 zones, covering, respectively, the eastern, western,
southern, and northern sections of the city. Four of the most success-
ful district managers in the original 12 districts were chosen to become
"zone supervisors," or zone managers, 1 in each of the 4 new zones.
In order to complete the number of district managers required under
the new system, about 20 men, some of whom were former key men,
were hired as district managers to take over newspaper distribution in
the more numerous and newly created districts.
The four employees designated zone supervisors, and selected for
their experience and success in extending the circulation of the Em-
ployer's newspapers, train newly appointed district managers in the
work expected of them; assist them in carrier problems; and, as group
leaders, by daily contacts and weekly meetings, further the Employer's,
promotion plans for increased circulation within their zones. Each
zone supervisor has five or more district managers in his territory, to
whom he relays notices of service "stops" and "starts" which may be
conveniently transmitted to him from the main office. They attend,
with district managers weekly meetings held in the Employer's main
office, where company policies are announced and promotion schemes,
are set forth and discussed. They hold in their several offices group
meetings, where promotion matters, previously presented by the heads.
of the department in regular meetings, are discussed. District man-
agers within the respective zones are expected to attend the meetings
held by their zone supervisor.
Zone 'supervisors are primarily instructors Iand group leaders,
From time to time, in emergencies, they serve as district managers.
They do not hire or discharge district managers. All, records of cir-
culation achieved by district managers are kept in the main office, not
124 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
in the zone offices, and these are relied upon not as a basis of compen-
sation, but as proof of their efficiency. Zone supervisors do not select
or choose district managers assigned to work in their zones. Such
matters are handled in the main office. Zone supervisors, like district
managers, are on a commission basis and receive an average of $116
per week. Their compensation, like the compensation of each district
manager in his zone, is dependent upon the circulation of newspapers
in the area in which they work. Hence, promotion of circulation in
the zones, reflected in the subscription records at the main office,
equally concern both the zone supervisors and the several district
managers in their zones.
The circulation districts, of which there are 28, as noted above, are
the distribution areas in charge of district managers. Within his
district, the district manager is responsible for the house to house
distribution of the Employer's newspapers. To effect prompt service,
districts are divided into newspaper routes of varying size,4 within
which delivery of papers is effected by carriers under contract with
the Employer or by district managers, serving as carriers over routes
in their districts .5
Carriers, of whom there are approximately 650,6 are, for the most
part, boys over 12, who make house to house distribution of the Em-
ployer's newspapers in the neighborhood of their homes within an
area described by the Employer. Carriers are employed under writ-
ten contract of 13 weeks' duration, subject to automatic renewal in the
absence of 2 weeks' written notice to terminate given by either party.
The contracts are signed by the circulation manager. The Employer
sets the buying and selling prices of its papers. The carrier's earn-
ings are the difference between these prices. The Employer furnishes
no equipment to carriers. District managers deliver papers to car-
riers at points convenient to their homes. Under the terms of the con-
tract, the Employer does not closely supervise the way carriers per-
form their house to house distribution. Failure to effect efficient
service is a breach of contract.
The records of carriers' performance within their distribution area
are kept at the main office, where carrier contracts are made and termi-
nated. The number of "draws" of papers requested by the carriers,
regulated by the stops and starts of paper distribution on their routes
and transfers of subscribers from one part of the city to another, the
number of complaints received at the main office for failures in delivery
4 The Employer desires that the distribution of paper in a route be effected within an
hour and favors , as general policy, that the routes of young boys be limited to 75 newspa-
pers. Splitting of larger routes is effected if it can be satisfactorily arrranged.
6 District managers who deliver papers from house to house on routes in their districts
do not sign carriers ' contracts.
6 Of this number, less than 50 are adults.
STAR PUBLISHING COMPANY 125
in their routes, and new subscriptions secured indicate the proficiency
of the carriers in their distribution duties.
District managers are responsible to the Employer for the satis-
factory distribution of papers within their districts, whether they
regularly deliver the papers themselves or whether carriers deliver
them. Some district managers regularly operate as carriers them-
selves over routes within their districts. All district managers are
responsible for the delivery of papers to subscribers within their terri-
tories and must take over the work if carriers fail to take up their
papers promptly. District managers are further responsible to the
Employer for the wholesale price of all papers delivered to them for
distribution in their districts. They assist carriers in making collec-
tions from subscribers. District managers are the "contact" men be-
tween the Employer and the carriers. They explain to parents of
prospective carriers the nature of the work. District managers are
paid on a commission basis and receive average earnings of $96 per
week.
District managers have frequent contacts with employees of the
circulation department at the main office. Personally and by tele-
phone, they report changes in addresses and transfers from carrier to
mail delivery within and without the State, discuss promotion activity
in their districts, deposit moneys received from carriers on collections,
and report errors in the reckoning of carriers' premiums. They turn
in advertisements given by subscribers to carriers and turned over to
them by carriers; and they pick up carriers' bills. All these details
may or may not go through the zone office. On the zone supervisor's
day off, the district managers must rely entirely on direct contact with
the main office. They report to the main office changes in the daily
draw sheets, and magazine subscriptions. They investigate complaints
of carrier service, which are received in the main office. So far as the
record discloses, district managers make no recommendations with
respect to the results of such investigations. The authority to revoke
a carrier's contract lies with the city circulation director. District
managers attend weekly meetings held by the city circulation director,
who outlines to them all matters which concern their work.
District managers and zone supervisors, like other circulation de-
partment employees, work a 5-day and 40-hour week. They are paid
on a commission basis, while office city circulation employees are on an
hourly wage. They have the vacations, social security, and insurance
privileges of other employees in the department, with whom they have
immediate personal contact one to four times each week.
The Petitioner, however, urges that the unit findings made by the
Board in the Boston Herald-Traveler case,7 and in Hollywood Citizen-
I See footnote 3, above.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
News s case are conclusive of the proper exclusion of the Employer's
district managers in the instant case. We do not agree. In the
Boston Herald-Traveler case, the Board rejected a contention that
suburban news dealers should be added to an existing unit of city
newspaper employees, not only because the former clearly exercised
supervisory powers, being in charge of branch offices with the power to
hire and discharge other employees, but because they work in suburban
areas outside Boston, away from the office and the plant where em-
ployees in the existing unit performed their work under quite different
conditions of employment. In the Hollywood Citizen-News case, the
Board found that district managers therein concerned, having the
power to hire and discharge other employees, exercised supervisory
authority and, in accordance with its practice, excluded them from the
unit of non-supervisory circulation department employees and set up
a separate unit for them. Neither of these decisions is conclusive of
the issues in the instant case. The Employer's city circulation depart-
ment is a highly integrated and closely knit department. Control,
centered in the administrative offices, is retained in the central office
where all records are kept, and the proficiency of carriers, district
managers, and zone supervisors is adjudged. Complaints of service,
the result of promotion drives, and the maintenance of satisfactory
service indicate directly the value of each employee to the Employer.
Upon the entire record in this proceeding, we are not persuaded that
district managers in the Employer's circulation department hire or
discharge carriers or recommend changes in their status. They serve
as carriers themselves. They carry out, within their areas, the direc-
tions of the city circulation director as such orders are given to them
at the Employer's office and explained and discussed at zone super-
visors' meetings.
Nor is there anything in the record on which we could base any
finding that zone supervisors have supervisory authority within the
Board's definition of that term. Zone supervisors are group leaders
who instruct, elucidate, and convey orders and messages from the city
circulation director to the district managers within their geographic
areas. Their offices are local deposits for money and convenient points
of distribution for stops and starts, and changes of service. The record
shows that zone supervisors and district managers are customarily
included in circulation department units in the industry. We shall
include employees in both categories in the bargaining unit.°
8 Matter of Hollywood Citizen-News ( Cotizen-News Company, a corporation .), 67 N. L.
R. B. 363.
° For reasons set forth in our decision in the Boston Herald-Traveler case, noted above,
we would not include in the unit with district managers , as suggested by the Intervenor,
road men in the country circulation department who have little or no contact with city
circulation employees.
STAR PUBLISHING COMPANY 127
The street sales manager: The street sales manager directs the dis-
tribution of the Employer's newspapers at street corners within the
city of Indianapolis by news boys in much the same fashion as district
managers effect the distribution of newspapers to the homes of sub-
scribers in the city through carriers. The Intervenor urges that the
street sales manager should be included in the unit which includes
district managers. Since they appear to have like and common inter-
ests, we shall include the street sales manager in the bargaining unit.
Secretary to the circulation director: The secretary to the circula-
tion director works in the circulation department at the Employer's
office. She takes dictation, cuts stencils for promotion work, types
material, and performs general office work. She types names for the
pay roll, but does not make salary entries thereon. None of her work
concerns labor relations matters. She receives a salary of $40 per
week. Her work is comparable to that of another clerical employee
in the department, who the parties agree should be included in the unit.
We find that the secretary to the circulation director is not a confiden-
tial employee and shall include her in the bargaining unit.
Mail subscription manager: This clerk, or "manager" as she is other-
wise called, is one of five employees in the mail subscription department
of the circulation department. She does not hire or discharge em-
ployees, nor recommend their hire or discharge. It is, however, her
responsibility to see that mail subscription orders are placed on the
mailing list, that reports go to the mailing room, and that the circu-
lation report that comes from the mailing room is made ready. She
assigns the work among employees in the department. She instructs
new employees in the work and performs the same duties herself. Since
the mail subscription manager is not a supervisory employee within
the Board's definition of the term, we shall include her in the bar-
gaining unit.
We find that all employees in the Employer's circulation department
at Indianapolis, including district managers, zone supervisors, street
sales manager, secretary to the circulation director, and the mail sub-
scription manager, but excluding all supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
As noted above, a prehearing election was held on-July 31, 1946,
and the Tally of the Ballots discloses that, of 71 ballots cast, 32 were
for the Petitioner, 32 for the Intervenor, and 1 for neither; and that
755420-48-vol. 74-10'
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6 ballots were challenged. The challenged ballots were cast by M. J.
Ehrmantrout, R. H. Larmore, William Edwards, and R. W. Carter,
all zone supervisors; by Nedra E. Mullett, secretary to the circulation
director; and by Louis Benjamin, street sales manager. Since we
have found that zone supervisors, the secretary to the circulation di-
rector and the street sales manager are included in the appropriate
unit, we find that the 6 employees named above are eligible voters
and that their ballots are valid.
Since it appears that the counting of the six challenged ballots of
eligible voters may affect the outcome of the election, we shall direct
that these challenged ballots be opened and counted 1e
DIRECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Star Publishing Company,
Indianapolis, Indiana, the Regional Director for the Ninth Region
shall, pursuant to the Rules and Regulations of the Board, within ten
(10) days from the date of this Direction, open and count the ballots
of M. J. Ehrmantrout, R. H. Larmore, William Edwards, R. W. Carter,
Nedra E. Muffett, and Louis Benjamin, and thereafter prepare and
cause to be served upon the parties a supplemental tally, embodying
therein his findings as to the outcome of the election, and take such
further steps in the investigation as may be necessary in accordance
with the Rules and Regulations of the Board.
" Since we have included the district managers and the mail subscription manager in
the appropriate unit, we find no merit in the Intervenor ' s motion to set aside the prehear-
ing election on the ground that the ballots of ineligible employees were therein commingled
with those of eligible employees and that the prehearing election is invalid.