Bronx County News Corp.

National Labor Relations Board - Board Decisions

May 24, 1950

89 N.L.R.B. 1567 (N.L.R.B. 1950)

In the Matter of BRONX COUNTY NEWS CORPORATION, EMPLOYER and
LOCAL 917, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PETITIONER
Case No. 2-RC-1352.-Decided May 24, 1950
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 Leonard J. Lurie, 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 this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim 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 the employees in the "return
room" as a separate unit. The Employer agrees with the Petitioner,
whereas the Intervenor, presently the representative of the Em-
ployer's other employees, contends that the return room employees
are, properly, only a part of the established unit.
The Employer is engaged in the wholesale sale and distribution
of magazines, periodicals, and paper backed books. The employees
of this Employer are classified as: floormen and distributors, who
receive, assort, and bundle magazines and books; drivers or route-
men, who deliver magazines to dealers and pick up unsold copies;
and return room employees, who differ in their duties from floormen
and distributors only in that they handle the magazines on the back
trip and in some cases strip the covers from magazines. All the em-
' Local 917, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , AFL, herein called the Petitioner , and Newspaper and Mail Deliverers
Union of New York & Vicinity, herein called the Intervenor.
89 NLRB No. 217.
1567
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees work in the same area, the return room workers occupying
a separate floor space which has no partition. The return room men
are separately supervised and do not interchange with the other em-
ployees. Their wages are $54 a week and their lunch period is on
their own time, whereas the floormen, distributors, and drivers, pur-
suant to a contract between the Employer and the Intervenor, earn
$84 a week and have their lunch period on company time. There are
approximately 11 employees in the return room and 12-14 employees
in the group represented by the Intervenor.
In June 1947, shortly after the Company was formed, the Employer
and the Intervenor entered into a closed-shop agreement covering the
floormen, distributors, and drivers, and also covering "men handling
returns" but providing no wage scale for the latter group. At that
time, however, the handling of returns was not a separate function,
nor was there a return department as such. Instead, returns were
handled by the owner and his wife and any of the employees. During
the years from June 1948 to June 1949, when the parties were negotiat-
ing for a new contract, the Employer expanded, and hired employees
to work exclusively in the return room. Thereafter the Petitioner
filed its petition, about a week before a new contract was executed by
the Employer and the Intervenor. This new contract, signed in June
1949, covers return room employees, but expressly subject to the de-
termination of the Board as to the unit placement of these employees.
On these facts, we are persuaded that there is no reasonable basis
for sanctioning the segregation of the Employer's employees into two
separate bargaining units. The function and duties of the return
room employees differ only slightly from those of the other employees
in this small establishment. The difference in their wages and hours
is due to the very question whether these employees are a part of the
Intervenor's established Unit .2 A close community of interests exists
between the return room men and those whom the Intervenor repre-
sents. We find that the single unit sought by the Intervenor is ap-
propriate.3 We shall direct an election in that unit, as the employees
2 The record is replete with evidence showing that it is because the Employer did not
regard these employees as covered by the contract that it has not given them the same
wage rates and other conditions of employment as the other employees.
In support of its contention for a separate unit, the Petitioner argues that the Inter-
venor has demonstrated a proclivity to discriminate against the return room employees.
We find no merit in this argument , for the Intervenor is offering , in this proceeding, to
represent the return room employees-presumably in accordance with the Act's require-
inents. Moreover, any certification issued to the Intervenor in this case would be subject
to rescission if the Board should find that the Intervenor has denied equal representation
to any employees in the unit herein found appropriate. See Fourteenth Annual Report,
p. 21; Thirteenth Annual Report , p. 28; Tenth Annual Report , pp. 17-18; and Martin J.
Barry, Inc., 83 NLRB 1146.
3 As the return room employees have no history of bargaining in a separate unit, we
consider Illinois Cities Water Company , 87 NLRB 109 , clearly distinguishable.
BRONX COUNTY NEWS CORPORATION 1569
in question comprise such a substantial segment 4 of the over-all group
and as the Intervenor apparently desires an election and certification
in the unit it advocates. The Petitioner will be placed on the ballot,
with leave to withdraw if it does not wish to participate in the election.
We find that all employees, including drivers or routemen, floormen,
distributors, and return room employees, at the Employer's Bronx,
New York, plant, but excluding office employees, and all 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.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said payroll period because they were ill or on vacation or tem-
porarily laid off, but excluding those employees who have since quit
or been discharged for cause and have not been rehired or reinstated
prior to the date of the election, and also excluding employees on
strike who are not entitled to reinstatement, to determine whether
they desire to be represented, for purposes of collective bargaining, by
Local 917, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL, or by Newspaper and
Mail Deliverers Union of New York and Vicinity, or neither.
ME 31BER REYNOLDS took no part in the consideration of the above
Decision and Direction of Election.
4 See Benner Tea Company, 88 NLRB 1409, where, also, the employees sought to be
added to an established unit were comparable in number to the employees in the historical
unit. We consider that the doctrine of Petersen d Lytle, 00 NLRB 1070, has no application
here.
5 The Employer employs inspectors or "supervisors" who engage in promotional work,
check newsstands, and adjust complaints, but bear no relation to the other employees,
supervisory or otherwise . According to a companion case, Seljan News Company, Case
No. 2-RC-1372, all the parties would exclude them. Therefore, we shall not include in-
spectors in the unit. We shall exclude the foreman of the return room as a supervisor, as
the record indicates that his duties are of a supervisory nature.
Any participant in the election directed herein may, upon its prompt request to, and
approval thereof by, the Regional Director, have its name removed from the ballot.