Indianapolis Newspapers, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1953

103 N.L.R.B. 1750 (N.L.R.B. 1953)

1750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
titioner seeks to represent all maintenance employees or certain
departments composed of maintenance and boilerroom employees of
the Pottstown plant. In its brief it seeks as an alternative nine al-
leged craft units.
In 1946 the Intervenor was certified as the bargaining representa-
tive of a unit of production and maintenance employees at the Potts-
town plant. In 1948 the representatives of the local union at Potts-
town and 7 other of the Employer's plants met with the Employer
and International representatives of the Intervenor and negotiated
an agreement prescribing uniform terms and conditions of employ-
ment for all production and maintenance employees at the 8 plants.
Changes in the 1948 agreement were subsequently negotiated in 1949,
1950, 1951, and, most recently, August 24, 1952. The master agree-
ments provide for negotiations of supplementary agreements at the
various local plants which do not contradict or conflict with the pro-
visions of the master contract.
We find that the proposed unit or units are inappropriate because
they would include employees of only one plant where there has been
an effective history of collective bargaining on a multiplant basis'
Accordingly, we shall dismiss the petition.3
Order
IT Is HEREBY ORDERED that the petition filed herein be, and it hereby is,
dismissed.
2 See Libbey Owens -Ford Glass Company , 78 NLRB 1170 ; International Paper Company,
Southern Kraft Division, 101 NLRB 759.
theIn view of our decision above, we find it unnecessary to rule upon other objections to
unit raised by the Employer and the Intervenor and the issue of contract bar.
INDIANAPOLIS NEWSPAPERS , INC. and INDIANAPOLIS NEWSPAPER GUILD,
LOCAL No. 70, AMERICAN NEWSPAPER GUILD , CIO and EMPLOYEES
PROTECTIVE ASSOCIATION , INDEPENDENT . Case No. 35-CA-290.
April 14, 1953
Decision and Order
On November 26, 1952, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not violated Section 8 (a) (1), (2), or (5) of the
Act, as alleged in the complaint, and recommended that the complaint
against the Respondent be dismissed, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the General Coun-
sel and the Guild filed exceptions to the Intermediate Report and sup-
porting briefs; the Respondent and the Association also filed briefs.
103 NLRB No. 151.
INDIANAPOLIS NEWSPAPERS, INC. 1751
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case,l and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent that they are
consistent with the findings, conclusions, and order hereinafter set
forth.
1. We agree with the Trial Examiner's conclusion that the Respond-
ent did not violate Section 8 (a) (1) and (5) of the Act. The basis
for our dismissal of these allegations, however, is that the certification
of representatives of the Guild was issued prior to December 22, 1949,
the date on which the Congress of Industrial Organizations came into
compliance with the filing requirements of Section 9 of the Act.2
2. A majority of the Board is in agreement with the Trial Examiner
that the Respondent did not violate Section 8 (a) (1) and (2) of the
Act, by reason of the activities of its zone supervisors and district
managers on behalf of the Association, as fully described in the Inter-
mediate Report. The record shows that zone supervisors, whose
supervisory status is conceded by all the parties, and district man-
agers, whose alleged supervisory status is disputed,3 were in the unit
bargained for by the complainant Guild and were active on its behalf.
In the absence of evidence, as here, that the Respondent encouraged,
authorized, or ratified their activities or acted in such manner as to
lead employees reasonably to believe that the supervisors were acting
for and on behalf of management,4 we, like the Trial Examiner, do
not believe that their conduct constituted assistance to, or domination
of, the Association.
1 As no objections have been filed to the General Counsel 's motion to correct certain
errors in the transcript of testimony , the record is hereby corrected in accordance with the
motion.
e Reynolds if Manley Lumber Company, Inc., 97 NLRB 188 ; Gazette Publishing Company,
101 NLRB 1694.
In view of the General Counsel 's exception to the Trial Examiner 's finding that district
managers are supervisors within the meaning of the Act, the Respondent ' s statement in
its brief that their status was not "fully tried because it was relevant primarily" to the
refusal -to-bargain allegation which was dismissed during the hearing, and our disposition
of the case , we find it unnecessary to pass upon the status of district managers
A See Kentucky Utilities Company , Inc., 83 NLRB 9-81 , enforced as modified 191 F. 2d
858 (C. A. 6) ; Mississippi Valley Structural Steel Company, 64 NLRB 78.
Members Houston and Styles, dissenting from this portion of the Board 's decision, would
find that the organizational activities of the conceded supervisors are attributable to the
Respondent and constituted interference with the formation and domination of the Asso-
ciation in violation of Section 8 (a) (2) of the Act . See N. L. R. B. v. Christian Board
of Publication, 113 F . 2d 678 ( C. A. 8). The fact that these supervisors were included in
the unit as a consequence of a consent election held in May 1949, does not alter these
Members' conclusion , as the record shows that shortly after that election , the duties of
zone supervisors were altered materially by the Respondent so as to change their equivocal
status to that of supervisors within the meaning of the Act.
1752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Board, however, unanimously disagrees with the Trial Ex-
aminer's failure to find that the Respondent violated the Act by recog-
nizing and contracting with the Association, under the circumstances
fully set forth in the Intermediate Report, and summarized herein.
In January 1950 the Respondent and the Guild entered into a writ-
ten contract which covered the circulation department employees.
This contract expired on August 1, 1950, and was thereafter continued
on a day-to-day basis for about 50 weeks, while the parties negotiated
for a new agreement. An impasse was reached on July 10, 1951. The
Association began organizing the circulation department employees
on July 17, 1951, and by July 24, 1951, obtained the signatures of a
majority of these employees to petitions which rejected the Guild and
authorized the Association to represent them. On July 24 the Re-
spondent, after authenticating the signatures, accorded recognition
to the Association and on the following day concluded an exclusive
bargaining contract with the Association for the same circulation de-
partment employees for whom the Guild had been negotiating until
July 10. Immediately thereafter the Respondent notified the Guild
that the Respondent no longer recognized the Guild as the bargaining
representative for these employees.
It is well settled that in situations like the instant one, involving
conflicting claims by rival labor organizations, an employer is re-
quired to maintain a strictly neutral attitude so as not to accord un-
warranted assistance and prestige to one labor organization by con-
tracting with it as the representative of the employees.5 We are
satisfied that the Respondent breached its neutrality by executing an
exclusive contract with the newly established Association and then,
during the pendency of negotiations with the previously certified and
currently recognized Guild, summarily withdrawing recognition from
that organization, without giving it notice or the opportunity to con-
test the claim of the Association through a Board proceeding or other-
wise. The recognition of the Association when the incumbent Guild
claimed to represent these employees under a certificate, in these cir-
cumstances was, in our opinion, unwarranted assistance to the
Association.
The Respondent, however, seeks to justify its conduct on the ground
that it had no doubt as to the Association's actual majority status
and that therefore it was compelled as a matter of law to bargain
with that organization. While it is true that the Association's peti-
tions contained the signatures of a majority of the employees, we do
not agree with the Respondent that there was no reasonable doubt as
to the Association's majority status. The Board has long ago ex-
5 See Harrison Sheet Steel Company v. N. L. R. B ., 194 F. 2d 407 ( C. A. 7), enig. 94
NLRB 81 ; Sunbeam Corporation, 99 NLRB 546.
INDIANAPOLIS NEWSPAPERS, INC. 1753
pressed its judgment that ". . . membership cards obtained during
the heat of rival organizing campaigns . . . do not necessarily re-
flect the ultimate choice of a bargaining representative; indeed, the
extent of dual membership among the employees during periods of
intense organizing activity is an important unknown factor affecting
a determination of majority status, which can best be resolved by a
secret ballot among the employees." 6 That principle is equally ap-
plicable, if not more so, to the instant case where the majority status
of a previously certified and currently recognized vital incumbent labor
organization (the Guild) was being challenged by a rival organiza-
tion (the Association), on the basis of designations obtained in a
few days during the pendency of negotiations.? The imperative need
in this case for a Board election before recognition is underscored by
the Respondent's contention in its brief that the Guild was seeking
recognition for an inappropriate unit, and the Respondent' s para-
doxical action in according exclusive recognition to the Association
for the very same unit.
For the foregoing reasons, we find that by entering into a contract
with the Association on July 25, 1951, the Respondent contributed
support to that organization in violation of Section 8 (a) (2) of the
Act and interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 thereby violating Sec-
tion 8 (a) (1) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with the operations of the Respondent described in section I
of the Intermediate Report, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
6 Midwest Piping and Supply Company, 63 NLRB 1060, 1070 . See also Sunbeam Corpo-
ration, 99 NLRB 546.
T See I Spieieak & Sons, 71 NLRB 770, where no unlawful refusal to bargain was found
upon a request for recognition by a rival union having an actual card majority , in view
of the presence of a vital incumbent bargaining representative . Cf. Spitzer Motor Sales,
Inc, 102 NLRB 437, where a different result was reached because of the virtually naked
claim of 1 of 2 rival organizations , which had also been assisted by the employer.
1754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. By rendering unlawful assistance to Employees Protective Asso-
ciation, Independent, the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (2) of the Act.
2. In the foregoing manner by interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in Section
7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The foregoing unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
Order
Upon the entire record in the case and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the Respondent, Indianapolis Newspapers, Inc.,
Indianapolis, Indiana, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Recognizing Employees Protective Association, Independent,
as the bargaining representative of its circulation department em-
ployees for the purpose of collective bargaining with it in respect to
wages, rates of pay, hours of employment, and other conditions of
employment, unless and until said labor organization shall have been
certified by the National Labor Relations Board.
(b) Performing and giving effect to its contract of July 25, 1951,
with Employees Protective Association, Independent, or to any modi-
fication, extension, supplement, or renewal thereof, or to any super-
seding agreement with said labor organization, unless and until said
organization shall have been certified by the National Labor Relations
Board .s
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their right to self organiza-
tion, to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection or to refrain from any and all such activities, except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
S However , nothing herein shall be construed to require that the Respondent vary or
abandon the terms or conditions of employment established in said agreement of July 25,
1951, or any modification , extension, supplement , or renewal thereof , or any superseding
agreement, or to prejudice the assertion by the employees of any rights they may have
thereunder.
INDIANAPOLIS NEWSPAPERS, INC. 1755
2. Take the following affirmative action which the Board finds will.
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Employees Pro-
tective Association, Independent, as the bargaining representative of
its circulation department employees for the purposes of collective bar-
gaining with it in respect to wages, rates of pay, hours of employment,
and other conditions of employment, unless and until said labor organi-
zation shall have been certified by the National Labor Relations Board.
(b) Post at its plant in Indianapolis, Indiana, copies of the notice
attached hereto and marked "Appendix A." 9 Copies of said notice,
to be furnished by the Regional Director for the Ninth Region, shall,
after being signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that these notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Ninth Region, in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that in all other respects the complaint herein
be, and it hereby is, dismissed.
9 In the event that this Order is enforced by a decree of the United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT recognize EMPLOYEES PROTECTIVE AssoCIATIoN,
INDEPENDENT, as the representative of our circulation department
employees for the purposes of collective bargaining with us in re-
spect to wages, rates of pay, hours of employment, or other condi-
tions of employment, unless and until said labor organization shall
have been certified by the National Labor Relations Board.
WE WILL NOT perform or give effect to our agreement dated July
25, 1951, with EMPLOYEES PROTECTIVE ASSOCIATION, INDEPENDENT,
or to any modification, extension, supplement, or renewal thereof,
or to any superseding agreement with said labor organization in-
volving the aforesaid unit of employees unless and until said labor
1756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization shall have been certified by the National Labor Rela-
tions Board.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection or to refrain from any
and all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
WE WILL withdraw and withhold all recognition from EM-
PLOYEES PROTECTIVE AssocIATloN, INDEPENDENT, as the representa-
tive of our circulation department employees for the purposes of
collective bargaining with us in respect to wages, rates of pay,
hours of employment, or other conditions of employment, unless
and until said labor organization shall have been certified by the
National Labor Relations Board.
INDIANAPOLIS NEWSPAPERS, INC.,
Employer.
By -----------------------------------
Dated --------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Upon an amended charge filed on November 21, 1951, by Indianapolis News-
paper Guild , Local No. 70 , CIO, hereinafter called Guild , the General Counsel
for the National Labor Relations Board , herein called , respectively , the General
Counsel and the Board, by the Regional Director for the Ninth Region ( Cincin-
nati , Ohio ), issued his complaint dated July 28, 1952 , against Indianapolis News-
papers, Inc., herein called Respondent , alleging that Respondent had engaged in
and was engaging in certain unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1), (2 ), and (5 ) and Section 2 (6) and ( 7) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the amended charge, the complaint, and notice of hearing were duly
served upon Respondent , the Guild , and Employees Protective Association, Inde-
pendent, herein called the Association.
With respect to the unfair labor practices the complaint alleged in substance
that Respondent ( 1) on or about February 22, 1951 , and thereafter , refused to
bargain collectively with the Guild as the exclusive representative of all employees
in an appropriate unit , and (2 ) directed the formation of and assisted the
Association.
The answer of Respondent , while admitting certain allegations of the com-
plaint with respect to the nature of its business , denied the commission of any
INDIANAPOLIS NEWSPAPERS, INC. 1757
unfair labor practices , and the Association filed an answer denying the allega-
tions of the complaint that it was formed or assisted by Respondent.
Pursuant to notice , a hearing was held at Indianapolis , Indiana , on September
'9 to 13 , 1952, before me , the undersigned Trial Examiner duly appointed by the
Chief Trial Examiner . The General Counsel , Respondent , the Guild , and the
Association were represented by counsel and participated in the hearing. Full
opportunity to be heard , to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues was afforded all parties . During the
hearing I granted a motion by the General Counsel to amend the complaint so
as to exclude from the appropriate unit zone supervisors , who were stipulated
to be supervisors within the meaning of the Act.
Upon the conclusion of the General Counsel 's case I granted a motion by
Respondent 's counsel to dismiss the allegations of the complaint that Respondent
had failed to bargain collectively.'
At the conclusion of the bearing the parties waived oral argument and were
granted until October 3 to file briefs . Subsequently this time was extended
by the Chief Trial Examiner to November 3, 1952 . Briefs were duly filed by
all parties . At the conclusion of the hearing Respondent moved to dismiss the
complaint in its entirety . Ruling thereon was reserved . The motion is disposed
of by the findings hereinafter made.
Upon the -entire record in the case and from my observation of the witnesses,
II make the following findings of fact :
1. THE BUSINESS OF RESPONDENT
Respondent is an Indiana corporation engaged in the publication , distribution,
and sale of two daily newspapers in the city of Indianapolis , Indiana , known as
the Indianapolis Star and Indianapolis News. Respondent , in the course of its
business , at all times material hereto has caused substantial quantities of news-
print, ink, typographical metal , and other materials to be purchased and trans-
ported in interstate commerce into the State of Indiana from and through other
States of the United States ; and has caused substantial quantities of newspapers
published by it to be shipped , delivered , and sold to points outside the State of
Indiana. During the last period of 12 months , and at all times material hereto,
it has contracted with advertisers located outside the State of Indiana for the
publication of advertisements in the Indianapolis Star and the Indianapolis
News for which it has been paid more than $150,000.
IL THE LABOR ORGANIZATION INVOLVED
The Guild and the Association are labor organizations admitting employees of
Respondent to membership . The Guild is affiliated with the American News-
paper Guild , in turn affiliated with the Congress of Industrial Organizations.
'The Association is unaffiliated with any national labor organization.
I The Guild was certified on May 16, 1949 , as the representative of Respondent's
employees in an appropriate unit pursuant to a stipulation for certification upon a consent
election . The motion to dismiss was granted following a statement by the General Counsel,
joined in by counsel for the Guild , that at no time after February 22, 1951 , the date which
the complaint asserts masked the beginning of Respondent 's failure to bargain collectively,
did the Guild's books show a majority of the employees in the unit. The General Counsel
made no contention that the Guild 's previous majority was dissipated by any unfair labor
practices of Respondent , and relied solely upon a presumption of a continuing majority
stemming from the original certification.
1758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The formation of the Association
1. Background
The Guild's certification of May 16, 1949, was as the bargaining representative
for "all employees in the circulation departments of Indianapolis Star and the
Indianapolis News including Zone Supervisors, District Managers and Street
Sales Managers, excluding Circulation Director, Assistant Circulation Director,
City Circulation Managers, Country Circulation Manager, Assistant Country
Circulation Manager, Marion County Circulation Manager, Mail Promotion
Manager, Circulation Auditor, all part-time employees working thirty (30) hours
or less per week, temporary employees, employees of all other departments,
guards and professional employees, and all other supervisors as defined in
Section 2 (11) of the Act."
Thereafter the Respondent and the Guild bargained collectively and on Jan-
uary 9, 1950, consummated a collective-bargaining agreement which by its terms
was to expire August 1, 1950. The contract expressly covered zone supervisors
as well as district managers. Bargaining sessions for the renewal of the con-
tract began on August 11, 1950, for employees both in the advertising depart-
ment and in the circulation department. There were 20 such sessions in all,
the last one on July 10, 1951. Pending negotiations the 1950 contract remained
in effect on a day-to-day basis, pursuant to its terms.
By July 1951 the principal issues left unsettled were three in number: (1) the
telephone operators in the advertising department, (2) a matter of working days
and hours-the exact nature of which does not appear clearly in the record,
and (3) the continued employment of branch managers in the circulation depart-
ment, the nature of whose duties is hereinafter described. Wage-increase pro-
posals and counterproposals had been made and discussed and while it is not
clear, as Respondent's brief contends, that agreement had been reached on wage
increases, it is apparent that progress had been made and that this issue was
not a critical one toward the end of the negotiations. In this connection, how-
ever, the Guild called upon Respondent for certain data with respect to its
payroll records which Respondent refused and upon which the alleged failure
to bargain is based. Since, as has already been stated, the allegation of the
complaint that Respondent failed to bargain collectively was dismissed on motion
at the hearing because of the lack of a majority either at the bargaining or
during the negotiations, or at the present time, the matter of the demand for
and refusal of wage data will not be discussed.
One of the reasons, and probably the principal one, why negotiations continued
for a period of almost a year after the formal expiration of the contract was
the question of the branch managers in the circulation department. During the
course of the bargaining negotiations in the fall of 1950, Respondent determined
to operate its circulation department with part-time branch managers who were
to assist district managers in the duties of circulating the papers, collecting
proceeds from the carriers, and promoting new subscriptions. Prior to this
time district managers had been given assistance by station captains whose
responsibilities were limited to circulation and collection and included no pro-
motional activities. The Guild objected to the employment of branch managers,
for what reason does not clearly appear in the record, and filed a grievance
charging that their hiring violated the contract. On March 16, 1951, an arbi-
tration hearing was held and on July 11 the arbitrator held with the Guild.
INDIANAPOLIS NEWSPAPERS, INC. 1759
At a meeting with Respondent's representatives on July 16, 1951, the Guild
demanded that Respondent enforce the award by "immediately" eliminating the
part-time branch manager system. William Moore, city circulation manager
for the Star, called together the district managers who had branch managers
under them and informed them that the Respondent intended to comply with
the award.
2. The Association
Its origin and formation
Some of the district managers , notably Lamar Downtain, were adversely
affected by the pending elimination of branch managers , and after work that
day Downtain encountered Chester Moore, Downtain's zone supervisor and hence
his immediate superior, and William Moore, as they were leaving the building,
and the three men went across the street to the Ever-Eat Tavern for a drink.
Downtain complained to William Moore about the proposed abolition of branch
managers and asked him if something could be done about keeping them, at least
temporarily. Moore told Downtain that the matter was "settled as long as the
Guild [was ] there."
That evening Downtain talked with a brother-in-law who advised him to seek
the advice of a lawyer and made an appointment for him with Louis C. Bose,
the Association's counsel in this case. On the following day, during the noon
hour, Downtain in the company of Marjorie Tarplee, a bookkeeper in the circula-
tion department, called upon Bose in his office concerning a method of changing
their union representation. Bose prepared petitions for forming the Association
which they picked up that evening after work. On the same evening Downtain
called upon James Hamilton, another district manager , while Tarplee made
contact with William Payne, a State zone supervisor. On the following day,
July 18, Downtain accompanied by Hamilton saw Payne and left petitions with
him for circulation. This was the regular day off for Downtain and Hamilton.
The next day after work, Hamilton telephoned Charles Blagburn, a district
manager, and arranged to meet him at another tavern. Present also in the tav-
ern were Chester Moore and Downtain. The four men discussed their dis-
satisfaction with the Guild and the task of forming the Association. Downtain
stated that it was necessary to have a majority of the employees in the circula-
tion department in the Association in order to be recognized by Respondent,
and Blagburn, Hamilton, and Chester Moore received petitions from Downtain
which they proceeded to circulate that night. By arrangement, the four gath-
ered later that night at Bolen's Tavern where they also met James Phillips,
another district manager. There is some conflict in the testimony as to who ar-
rived first, but apparently Chester Moore and Downtain were present before
Blagburn, accompanied by Hamilton, arrived.
In the meantime, however, William Moore dropped in accompanied by Lewis
Mottice, a promotion man for a magazine distributor who had been entertaining
Moore that evening. After the arrival of Blagburn and Hamilton, 2 tables were
moved together to accommodate the 6 men. Those present testified, and I credit
their testimony, that the appearance of William Moore was not by prearrange-
ment. The latter testified credibly that he and Mottice stopped in at Bolen's
on a round of the various bars in the neighborhood. The further credible testi-
mony of the witnesses other than William Moore is that although they had been
distributing petitions for the Association that night, no petitions were present
at the table, having been left in their automobiles. Their further uncontradicted
testimony, which I credit, is that no conversation concerning the Association took
1760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
place in the presence of William Moore, except that after Blagburn and Ham-
ilton had seated themselves Phillips moved next to Blagburn and asked him
whether he was going to sign the petition. At this time William Moore was so
seated as to be approximately 8 feet away from Blagburn and Phillips. There
is no evidence that William Moore overheard the conversation between the two
men. William Moore testified that he did not and I credit his testimony.
From July 20 through Sunday, July 22, the above-named employees, excluding
William Moore, solicited signatures to the Association's petition which was in
the following form :
Each of the undersigned no longer wants to be represented by, pay dues to,
or be connected in any way with Indianapolis Newspaper Guild, the CIO, or
any affiliate of the CIO. We want to be represented by Employees Protective
Association, an organization of our own employees , in bargaining with
Indianapolis Newspapers, Inc.
On the morning of July 23 Downtain, Tarplee, Payne, and Chester Moore
called upon Willard Worcester, a vice president of Respondent, at his office
where Worcester and Raymond Houk, Respondent's circulation director, were
present. Downtain told Respondent's representatives that he had a petition
signed by slightly more than 50 percent of the employees requesting recognition
of the Association. Worcester's credible testimony, uncontradicted by any other
evidence, is that this was his first notice of the formation of the Association.
There is no evidence that Houk had any previous knowledge. Worcester, on
behalf of Respondent, told Downtain that the percentage claimed by the Associa-
tion was not sufficient to require recognition, and the Association's representa-
tives left. At lunch that day Worcester informed William Dyer, Respondent's
general manager, of the Association's request. I find, in accordance with his
testimony, that this was the first information which Dyer had of the Association's
formation.
On the morning of July 24 the Association representatives, along with Bose,
again called upon Worcester and Dyer in the former's office. Bose presented a
letter stating that the Association represented a majority of the employees in the
circulation department, demanded its recognition, and requested a meeting for
the purpose of discussing a contract. He offered to furnish satisfactory evidence
of the Association's majority which Bose stated had been increased since the
day before, and presented the petition with the signatures of 95 employees, more
than 60 percent of the total in the circulation department. Worcester replied
that he would have to examine the signatures and it was agreed that the meeting
be recessed until after lunch. During the lunch hour Dyer had the names checked
against the payroll, and finding that the signers were all employees, telephoned
Respondent's attorney, Frederic Anderson.' Anderson advised Dyer that if he
did not doubt the majority it might be an unfair labor practice to refuse to
recognize the Association. After lunch Bose again demanded that Respondent
meet and bargain with the Association, and Worcester made an appointment
with them for that afternoon at 4 o'clock.
At the meeting at 4 o'clock Respondent entered upon negotiations with the
representatives of the Association. These continued until late that night with
an adjournment for dinner. Downtain, Tarplee, Payne, Chester Moore, and Bose
represented the Association, and Dyer, Worcester, and Houk, Respondent. On
2 It does not appear that the signatures themselves were checked for their authenticity.
The General Counsel makes no contention, however, that any signature was not authentic.
He cites this merely as evidence of Respondent's eagerness to recognize the Association.
INDIANAPOLIS NEWSPAPERS, INC. 1761
two occasions during the negotiations a recess was called to permit separate
consultation of employee and employer representatives . The basis of the nego-
tiations was the previous Guild contract and the last proposal which Respondent
had made to the Guild.
The Association's representatives urged certain changes, some of which were
agreed to . A tentative agreement on a new contract was reached subject to
ratification by members of the Association.
A general meeting of the Association adherents was held on the following day,
July 25, at the neighborhood Y. W. C. A. during the employees' lunch hour, with
between 30 and 50 employees present. The contract was read and ratified.
Upon the conclusion of the meeting the Association's representatives returned to
Worcester 's office and informed him of the ratification of the contract which was
then signed by representatives of both parties. That afternoon Dyer , on behalf
of Respondent , wrote the Guild as follows :
It has become apparent that you do not represent a majority of employees
in any appropriate collective bargaining unit in the Circulation Department.
Therefore , please take notice that Indianapolis Newspapers , Inc. no longer
recognizes you as the representative , for the purposes of collective bargaining,
of the employees in the Circulation Department of the Indianapolis Star and
the Indianapolis News , and that all contractual relations with respect to-
that department with your union are at an end.
This does not in any way affect the advertising department.
This letter followed by 15 days the last meeting between the Respondent and
the Guild.
Conclusions
There is no substantial conflict in the record with respect to the above facts.
The General Counsel's contention that it must be found that Respondent "assisted,
dominated [and] directed the formation and administration of the Association"
rests upon (1) the fact, as found above, that William Moore was present at Bolen's
Tavern in the company of organizers for the Association when two of the latter,
in a separate conversation, discussed the subject briefly; (2) the promptness
with which Respondent recognized the Association when it was submitted evi-
dence of its majority status ; and (3) the activity of zone supervisors, admittedly
supervisory employees within the meaning of the Act, and district managers,
whose supervisory authority is in dispute, in forming the Association.
With respect to (1), it has been found above that William Moore neither par-
ticipated in nor overheard the conversation. No other evidence was offered of
intervention by higher supervision. With respect to (2), celerity in recognizing-
a labor organization is never, standing by itself, sufficient evidence of company
domination or interference. The whole spirit of the Act favors the prompt
recognition of a labor organization of employees when lawfully formed and
when it represents a majority of employees in an appropriate unit. A finding of
domination or interference must rest on other grounds. Here, Respondent was
indeed prompt in recognizing and reaching a contract with the Association, dur-
ing a period when it was still undergoing long drawn out negotiations with the
Guild, which, however, did not represent a majority of the employees. It may
indeed be conceded that Respondent was gratified that the matter of a contract
for employees in the circulation department was disposed of in the manner in.
which it was, and acted with alacrity. But the suspicion of employer support
of the Association, thus raised, remains a suspicion only unless coupled with
other evidence.
1762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is with respect to (3) that the question of the Association's legitimacy
principally arises. At the hearing it was stipulated by the parties that zone
supervisors were supervisors withiL the meaning of the Act. It is clear from
the record that they were, and such a finding would have .been compelled even
in the absence of the stipulation. No such stipulation was made as to district
managers, the General Counsel contending that they were not supervisors within
the meaning of the Act and Respondent contending that they were and are .3 It
is necessary, therefore, to discuss briefly the duties of the district managers.
The territory throughout which Respondent's publications circulate is divided
into a number of districts. These districts are in charge of a district manager
of whom Downtain is an example. He has charge of branches or stations from
which the newspapers are distributed. These branches or stations were at the
time of the events herein described in charge of station captains or branch
managers. The chief point of disagreement between the Guild and Respondent
was the proposed increase in the duties of branch managers and the gradual
replacement by them of station captains, both part-time employees. The district
manager directs the work of the station captains and/or branch managers. He
hires and discharges them and can change their status while employed. There
is no conflict in the evidence on this point. District managers on the Star also
hire a number of carriers who work only on Sunday. These also he discharges
when advisable, and he supervises their work while employed. In July 1951,
the period pertinent to the issues in this case, Downtain, for example, had five
substations with a branch manager at each. The situation on the News with
respect to branch managers and station captains and their relationship to dis-
trict managers, was the same as on the Star except that the former paper
employed no Sunday men. It seems to me, and I find, that district managers
as well as zone supervisors are supervisors within the meaning of the Act.
Both zone supervisors and district managers, the first conceded and the second
found to be supervisors within the meaning of the Act, were in the appropriate
unit represented by the Guild and were covered by the Guild's contract. Both
categories had been for a long period members of the Guild and active in its
affairs. For example, Matthew McNulty and Russell Jordan, both district man-
agers, were members of the Guild's negotiating committee, and the former was
an officer of the organization. Similarly, Michael Schelli, another district man-
ager, later a zone supervisor, was on its negotiating committee.
In the ordinary situation the activity of supervisory employees in forming and
administering a labor organization is attributable to the employer, and is fre-
quently the strongest kind of evidence of employer domination. The circum-
stances here, however, are unusual. While Downtain, Hamilton , and Blagburn,
district managers , and Chester Moore and Payne, zone supervisors , were active
in the Association, they were little if any more so than their counterparts in the
Guild 4 Where such a situation exists it seems to me that the true test of em-
ployer interference is not the fact that certain of those active in the organization
were supervisors, but whether their activities could reasonably have been in-
terpreted by the employees generally as having the sanction and encouragement
of higher supervision. If, for example, the supervisors who were members of and
8 The respective positions of counsel on this matter were taken in connection with the
issue of the alleged failure of Respondent to bargain collectively with the Guild. A find
that the district managers were supervisors would, of course, further undermine the unit
for which the Guild sought to bargain, already weakened by the stipulation that zone
supervisors were supervisors within the meaning of the Act.
4 Except that Downtain , Hamilton , Blagburn, Chester Moore , and Payne helped in form-
ing the Association , whereas there is no evidence as to what part zone supervisors and
district managers took in the original formation of the Guild.
INDIANAPOLIS NEWSPAPERS, INC. 1763
active in the Guild were in no way instigated or encouraged by higher supervision
but the supervisors in the Association were, then the conclusion would probably
follow that Respondent interfered with the Association. There is no such evi-
dence in the record, however.`
Here the activities of supervisors in both the Guild and the Association
stemmed from their inclusion in the appropriate unit. The employees very likely
saw nothing more significant in the activities of Downtain, Moore, and other
supervisors on behalf of the Association, th., n they saw in the activities of Mc-
Nulty, Jordan, Schelli, and other supervisor, in the Guild. Moreover, Respond-
ent's relations with the Guild had always been amicable, so far as the record
reveals, and it continued to maintain its bargaining relationship with that organi-
zation in the advertising department. There is, also, no independent evidence of
any hostility on the part of Respondent toward the organization of its employees.
Accordingly, I find against the contention of the General Counsel that Respondent
formed, dominated, and/or assisted the Association.
CONCLUSIONS OF LAW
1. Respondent, Indianapolis Newspapers, Inc., is and at all times relevant here-
in was engaged in commerce within the meaning of Section 2 (6) and (7) of
the Act.
2. Indianapolis Newspaper Guild, Local No. 70, American Newspaper Guild,
CIO, and Employees Protective Association, Independent, are labor organizations
within the meaning of Section 2 (5) of the Act.
3. Respondent has not engaged in any unfair labor practices within the mean-
ing of the Act.
[Recommendations omitted from publication in this volume.]
5 Aside from the brief conversation between Blagburn and Phillips at Bolen's Tavern,
previously referred to, in the presence of William Moore, city circulation manager for the
Star, but which he did not overhear and in which he did not participate, there is one other
item of evidence on which the General Counsel relies. This has to do with Gertrude
Reynolds, Respondent's office manager. According to Helen Molnar, a typist in the office
and a member of the Guild, on the day of the meeting of Association adherents at the
Y. W. C A , Reynolds suggested that Molnar attend the meeting and later expressed dis-
appointment that she had not done so Reynolds was within the unit at the time of the
election in May 1949 when she was classified as mail subscription manager. As office
manager her responsibilities were somewhat enlarged and her status at the time of the
conversation with Molnar is not clear in the record. She was, however, apparently a minor
supervisor. She was not called as a witness Molnar was not impressive as a witness,
placing the membership meeting of the Association at 5 o'clock in the afternoon instead of
at noon, and in other respects being vague. Assuming, however, that Reynolds made the
statements attributed to her, I do not find them sufficient under the circumstances to bind
Respondent.