The Bethlehems' Globe Publishing Co.

National Labor Relations Board - Board Decisions

Apr 21, 1952

98 N.L.R.B. 1238 (N.L.R.B. 1952)

1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall direct an election among the following employees of The
Chicago Daily News, Inc., Chicago, Illinois, excluding outside cir-
culation employees,8 and all guards, supervisors, and professional
employees as defined in the Act.
All advertising, accounting, promotion, and administrative depart-
ment employees, office circulation department employees, part-time
telephone canvassers, and unrepresented employees in the mechanical
departments. -
If a majority of the employees voting cast ballots for the Petitioner,
they will be taken to have indicated their desire to be part of a single
unit together with the news-editorial department employees, and the
Petitioner may bargain for them as part of such unit. The Regional
Director conducting the election directed herein is instructed to issue
a certificate of results of election to such effect.
[Text of Direction of Election omitted from publication in this
volume.]
CHAIRMAN HERZOC took no part in the consideration of the above
Decision and Direction of Election.
S Truck drivers , city division managers , city home delivery district managers , country
and suburban branch managers , country and suburban solicitors , and depot' boys..
THE BETHLEHF-ms' GLOBE PUBLISHING COMPANY and NEWSPAPER GUILD
OF PHILADELPHIA AND CAMDEN, LOCAL 10, AMERICAN NEWSPAPER
GUILD, CIO, PETITIONER. Case No. 4-RC-1457. April 2i1, 1952
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 Harold Kowal, hearing officer.
The hearing officer's rulings made at the hearing are free from prej-
udicial 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 Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is a Pennsylvania corporation engaged in pub-
lishing a newspaper at Bethlehem, Pennsylvania. The newspaper's
daily circulation is approximately 24,000, of which about 2 percent
goes to subscribers outside the State of Pennsylvania. The Employer
is a member of the Associated Press and the United Press, and utilizes,
distributes, and contributes to the news service of each. It also re-
ceives and publishes national features, comic strips, and advertise-
ments of nationally sold products. In connection with its publication
98 NLRB No. 191
THE BETHLEHEMS' GLOBE PUBLISHING COMPANY 1239
of the newspaper, the Employer annually purchases newsprint, paper,
and ink valued at more than $200,000, all of which is shipped directly
to it from points outside the State. Upon the above facts, we find that
the Employer is engaged in commerce within the meaning of the
National Labor Relations Act.'
The Board has recently reaffirmed its policy of asserting jurisdic-
tion over instrumentalities and channels of interstate commerce.2 We
believe that the Employer's newspaper, through its membership in
interstate' news services, is such an enterprise. Accordingly, we find
it would effectuate the policies of the Act to assert jurisdiction herein 3
2. The labor organization involved claims to represent certain
employees 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 a unit composed of all the employees in the
Employer's editorial department, including the city editor, the photog-
rapher, and reporter-trainees, but excluding the editor, the managing
editor, and all guards and supervisors as defined in the Act. The
Employer contends that the unit sought by the Petitioner is inappro-
priate, asserting that a combined unit composed of the employees in
the editorial, advertising, and business departments constitutes the
only appropriate bargaining unit. The Employer further asserts
that the city editor, the photographer, and the reporter-trainees should
be excluded from any bargaining unit the Board might establish.
There has been no history of collective bargaining covering the edito-
rial employees.
In 1947 the Board directed an election among the Employer's adver-
tising,and business employees, excluding all employees in the editorial
department.' In the decision in that case, the Board rejected the
Employer's contention that all three departments together constitute
the only appropriate bargaining unit. In so holding, the Board there
relied primarily upon the difference in function between the editorial
and other departments, the physical separation of the editorial em-
ployees, and the lack of substantial interchange and day-to-day associ-
ation between the editorial employees and the employees in the
commercial departments. The present record reveals that there has
been no significant change in the Employer's operation since 1947.
I Bethlehem Globe Publishing Co, and Plain Dealer Publishing Co., Inc., 47 NLRB 268;_
Bethlehems' Globe Publishing Company, 74 NLRB 392.
2 WBSR, Inc., 91 NLRB 630.
3 Press Inc ., 91 NLRB 1360.
4 Bethlehems ' Globe Publishing Company, supra.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, for the reasons advanced in our earlier decision establish-
ing the commercial employees as a separate appropriate bargaining
unit, we here find that the editorial employees alone constitute such a
unit .'
There remains for consideration the status of the following indi•
viduals whose requested inclusion in' the unit by the Petitioner is
contested by the Employer :
The city editor.-The Employer contends that the city editor should
be excluded as a supervisor. The record reveals that he is in immedi-
ate charge of the Employer's editorial employees whose work he as-
signs, directs, and inspects. He does not work regular hours, as do the
other editorial employees, and his salary is higher than theirs. The
present city editor, who was appointed in August 1951, testified that in
his limited experience in the job he has not had occasion to discipline
employees under his direction, nor has he hired or discharged any
employees. However, the Employer's editor testified that when the
occasion arises, the present city editor's recommendations regarding
retention, dismissal, or discipline, like those of his predecessor, will
generally be followed because of the city editor's intimate knowledge
of the quality of work performed by the employees under his direc-
tion. In the circumstances, we believe the city editor is a supervisor
within the meaning of the Act, and we shall exclude him from the bar-
gaining unit.
The photographer.-The photographer, at the direction of the city
editor and managing editor, covers photographic assignments for the
Employer. His camera is supplied by the Employer and he does all of
his printing and developing in the Employer's photographic labora-
tory. Like the others in the editorial department, he is paid a regular
salary, and like the others he receives an annual paid vacation. How-
'ever, the Employer contends that the photographer is an independent
-contractor and not an employee. In support of this contention the
Employer points to the fact that the photographer derives about 25
percent of his income from outside sources; he employs and pays an-
'other photographer to take his place 1 day each week, and no income or
social security taxes are deducted from his salary. In addition, the
photographer pays for all of the film, photographic paper, and
chemicals used in printing and developing his photographs.
In determining whether an individual is an employee or an inde-
pendent contractor no single factor is necessarily determinative.
Nevertheless, it is well settled that the most essential characteristic
of an employer-employee relationship is the retention by the employer
,of the right to direct and control the manner in which the employee's
work shall be performed. As the Employer here does retain this
6 See A. 'S Abell Company , 81 NLRB 82.
HALL STREET COLD STORAGE WAREHOUSES , INC. 1241
control, even though it may not exercise it, and because the Employer
has the right to terminate at will its relationship with its photographer,
we find that the photographer is an employee and not an independent
contractors Accordingly, we shall include him in the unit.
The reporter-trainees.-The Employer employs three probationary
employees in the editorial department who are called reporter-trainees.
Two have worked for the Employer since January 1, 1952; the third
is a college student who has been working for the Employer since the
summer of 1951, and who will complete his probation when he finishes
his college work this June. The normal probationary period is 3
months for employees with previous newspaper experience and 6
months for all others. The record reveals that all three reporter-
trainees work a 40-hour week like the other employees in the editorial
department, and that their assignments are of the same type, though
less exacting, than those of the regular editorial employees. As the
Employer's editor testified that each of the reporter-trainees has a
reasonable expectancy of permanent employment, we shall, in accord-
ance with our usual practice, include them in the bargaining unit.'
We find that all employees in the editorial department of the Em-
ployer's newspaper plant at Bethlehem, Pennsylvania, including the
photographer and the student-trainees, but excluding the editor, the
managing editor, the city editor, and all guards and supervisors 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.]
Citizen News Company , 97 NLRB 428.
' J. C. Penney Company, Inc ., 92 NLRB 1454.
HALL STREET COLD STORAGE WAREHOUSES , INC. and INTERNATIONAL
BROTI-IERHOOD OF FIREMEN , OILERS AND MAINTENANCE MECHANICS,
LOCAL 56, AFL, PETITIONER . Case No. 2-RC-3614. April 23,1950
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before I. L. Broadwin,
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 Murdock and
Peterson].
98 NLRB No. 198.