Marcellus M. Murdock

National Labor Relations Board - Board Decisions

May 15, 1946

67 N.L.R.B. 1426 (N.L.R.B. 1946)

In the Matter of MARCELLUS M. MURDOCK, AS TRUSTEE FOR THE VIC-
TORIA MURDOCK ESTATE and WICHITA MAILERS UNION No. 85, AF-
FILIATED WITH INTERNATIONAL MAILERS UNION
In the Matter of THE BEACON PUBLISHING COMPANY and WICHITA
MAILERS UNION NO. 85, AFFILIATED WITH INTERNATIONAL MAILERS
UNION
Cases Nos. 17-R-1-337 and -17-R--1338, respectively.-Decided May
15, 1946
Mr. Dale M. Stucky, of Wichita, Kans., for the Eagle.
Mr. Leonard A. Levand, of Wichita, Kans., for the Beacon.
Mr. Edward J. Fillenwarth, of Indianapolis, Ind., and Mr. Harold
A. Hosier, of Denver, Colo., for the IMU.
Mr. Maurice Goodrich, of Wichita, Kans., for the ITU.
Mr. Robert J. Freehling, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon two separate amended petitions duly filed by Wichita Mailers
Union No. 85, affiliated with International Mailers Union, herein
called the IMU, alleging that questions affecting commerce had arisen
concerning the representation of employees of Marcellus M. Murdock,
as Trustee for the Victoria Murdock Estate, Wichita, Kansas, and
of The Beacon Publishing Company, Wichita, Kansas, herein sepa-
rately called the Eagle and the Beacon, respectively, and collectively
called the Companies, the National Labor Relations Board consoli-
dated the cases and provided for an appropriate hearing upon due
notice before Robert S. Fousek, Trial Examiner. The hearing was
held at Wichita, Kansas, on April 18 and 19, 1946. The Eagle, the
Beacon, the IMU, and Wichita Mailers Union No. 85, affiliated with
the International Typographical Union, herein called the ITU, ap-
peared and participated. All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to intro-
67 N. L. R. B., No. 194.
1426
MARCELLUS M. MURDOCK 1427
duce evidence hearing on the issues. At the hearing, the IMU moved
for an indefinite continuance to permit the Board to investigate al-
leged violations by the Companies of Settlement Stipulations,' af-
fecting the operations here involved, and to enable the IMU to file
additional charges of unfair labor practices. The Trial Examiner
denied the motion, without prejudice to further action by the IMU.
The ruling of the Trial Examiner is hereby upheld. It is patent
that the more taking of evidence, with respect to the issues in the
instant representation proceedings, could not operate to prejudice
the IMU's rights arising out of these alleged violations by the Com-
panies of Section 8 of the Act. In any event, all parties, including
the IMU, have since the hearing expressed to a Board agent, acting
in his official capacity, the desire to expedite the decision in the in-
stant cases and to proceed with an election forthwith .2 The Trial
Examiner's additional rulings made at the hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded
opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. TILE BUSINESS OF 'IIIE COMPANIES
Marcellus M. Murdock, as Trustee for the Victoria Murdock Estate,
is an individual engaged in publishing a daily newspaper known as
the Wichita Eagle in Wichita, Kansas. The Eagle annually purchases
raw materials valued in excess of $200,000 from sources outside the
State of Kansas. The paper has a daily circulation in excess of 65,000
copies, of which approximately 5 percent is distributed to points out-
side the State.
The Eagle admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
The Beacon Publishing Company is a Kansas corporation engaged
in publishing a daily newspaper known as the Wichita Beacon in
Wichita, Kansas. The Beacon annually purchases raw materials
valued in excess of $260,000 from sources outside the State of Kansas.
The paper has an average daily circulation of approximately 91,000
copies and a Sunday circulation of approximately 110,000 copies;
from 15 to 20 percent of its total circulation is distributed to points
outside the State.
'These Stipulations were entered into by the Board and the Beacon, and by the Board
and the Eagle, on April 6, 1946, in Cases Nos. 17-C-1354 and 17-C-1355, respectively.
In both cases. the IMU was the charging union
2 We note that the compliance peiiod provided for in the Settlement Stipulations has not
yet expired However, in view of the desires of the parties to proceed forthwith, we are
.of the opinion that there are no obstacles to elections at this time
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Beacon admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
If. THE ORGANIZATIONS INVOLVED
Wichita Mailers Union No. 85, affiliated with the International
Mailers Union, is a labor organization admitting to membership em-
ployees of the Companies.
Wichita Mailers Union No. 85, affiliated with the International
Typographical Union, is a labor organization admitting to member-
ship employees of the Companies.
III. THE QUESTIONS CONCERNING REPRESENTATION
The Companies have refused to grant recognition to the IMU as
the exclusive bargaining representative of any of their employees until
the IMU has been certified by the Board in an appropriate unit.
In its motion to intervene, the ITU alleged, inter alia, that a closed-
shop agreement is presently in effect between itself and the Companies
covering the employees involved in this proceeding. The contract in
question extended from March 1, 1945 to February 28, 1946, and was
automatically renewable from year to year, unless notice of desired
changes was served by one of the parties 60 days prior to any anni-
versary date. The ITU served such notice approximately 62 days
prior to February 28, 1946. Inasmuch as the contract expired prior
to the date of the hearing, it cannot operate to bar the present
proceeding.3
We find that questions affecting commerce have arisen concerning
the representation of employees of the Companies, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
1V. THE APPROPRIATE UNIT
The IMU seeks a unit of all employees in the mailing rooms of both
the Eagle and the Beacon, whose work pertains to mailing, such as
tagging, stamping, labelling, bundling, wrapping, preparing wrap-
pers, sorting, routing, dissecting or marking wrappers, taking papers
from delivery end of conveyors and escalators leading from press-
rooms, stacking, folding, handling of bundles or mail sacks in mail
rooms, distributing, counting of papers, tying, sacking, delivering
papers to mailers at mail rooms, inserting in the mailing room or dis-
tributing of papers, but excluding office and promotional wrappers,
a We are unable to agree with the ITU's position in its brief that the contract continued
in existence after February 28, 1946, even though opened by either of the parties for
negotiations . Moreover , assuming that there is merit in the ITU's position , the contract
became one of indefinite duration after February 28, 1946 , and, as such, cannot, under
well-established principles of the Board, bar elections at this time.
MARCELLUS M. MURDOCK 1429
stencil room workers, employees engaged in carrying out papers to
the carriers, and foremen 4 This unit is similar to that covered by
the collective bargaining contract referred to hereinabove, except for
the requested exclusion of foremen. The ITU, the Eagle, and the
Beacon agree generally as to the composition of the unit sought by
the IMU, except that they would include the foremen. With respect
to the scope of the unit, the Beacon agrees that a multi-employer unit
is appropriate, whereas the Eagle contends that a separate unit for
each company is appropriate; the ITU takes no position.
For approximately 8 years, the Eagle and the Beacon jointly nego-
tiated collective bargaining agreements with the ITU concerning
employees in their mailing rooms, and the terms in each instance were
embodied in a single instrument, signed by the three parties and cover-
ing the employees of both Companies. Agreements concerning other
crafts were similarly executed by the Companies. Nevertheless, the
Eagle, by now asserting that its mailing room employees comprise
a separate unit, reveals an intention henceforth to pursue a separate
course. We have frequently held that such intent is controlling 5
and, accordingly, we find that a unit comprising the mailing room
employees of each company is appropriate.
The mailing room foremen, whom the IMU seeks to exclude, have
authority effectively to recommend the discharge of their subordinates
and are admittedly supervisory employees. However, they have been
covered by all previous collective bargaining contracts with the Com-
panies and are traditionally included within bargaining units in this
industry a Accordingly, we find that all foremen should be included
within the units.
We find that all mailing room employees of the Eagle and the Bea-
con, respectively, whose work pertains to mailing, such as tagging,
stamping, labelling, bundling, wrapping, preparing wrappers, sort-
ing, routing, dissecting or marking wrappers, taking papers from
delivery end of conveyors and escalators leading from pressroom,
stacking, folding, handling of bundles or mail sacks in mail room,
distributing, counting of papers, tying, sacking, delivering papers
to mailers at mail room, inserting in the mailing room or distribut-
4 The two amended petitions sought units confined to the employees in the mailing room
of the Eagle and of the Beacon, respectively. At the hearing, the IMU further amended
its separate petitions to read as shown above , making the unit request in each petition
identical.
b Matter of Jalmer Berg, 59 N L . R B 685 ; Matter of Great Bear Logging Company,
59 N L. It. B. 701 ; and Matter of George F . Carleton & Company, Inc., 54 N. L. It . B, 222.
6 Matter of The Register and Tribune Company, 60 N. L. R B 360; Matter of The Post
Printing & Publishing Company, 59 N. L. R. B 1115, and cases cited therein.
In its brief , the IMU concedes that the pattern in the industry would argue for the
inclusion of foremen , but asserts that an exception should be made in this case because of
certain alleged conduct by the Companies ' foremen deemed by it to be objectionable. This
is clearly no basis for excluding foremen, as such, from the units.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing of papers, including foremen, but excluding office and promo=
tional wrappers, stencil room workers, and employees engaged in
carrying out papers to the carrier, constitute separate units appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the questions which have arisen concerning the repre-
sentation of employees of the Companies can best be resolved by elec-
tions by secret ballot.
The parties have agreed generally that "Saturday night employees,"
i. e., employees who work only on Saturday nights, are temporary
and casual workers, and are not entitled to vote. However, the ITU
contends that Bowman, a "Saturday night employee" of the Eagle,
should be treated as an exceptional case and should be eligible to vote.
The IMU contests the ITU's position, and argues further that Bow-
man's full-time employment by another employer should preclude
his eligibility to vote. We find no merit in the IMU's position that
his other employment militates against his eligibility.' As to the
nature of Bowman's employment, the record indicates that he has
worked for the Eagle approximately 7 hours each Saturday night
during the past 3 months. We are persuaded that his work, unlike
that of the other "Saturday night employees," constitutes regular
part-time employment.' Accordingly, we shall allow Bowman to
participate in the election along with the other regular part-time
employees, who the parties have agreed are eligible, and shall hold
all other "Saturday night employees" ineligible to vote.
The ITU and the IMU also disagree as to the eligibility of Webb,
an employee of the Eagle who works part time in the mailing room.
Webb is employed primarily in the circulation department of the
Eagle, where he spends the major portion of his time. Inasmuch as he
spends substantially less than 50 percent of his time in the mailing
room, we are of the opinion that Webb does not have sufficient interest
in the conditions of employment of the employees involved herein to
entitle him to vote.9
The parties are further in dispute with respect to the eligibility of
employees who were hired as replacements of certain employees dis-
charged by the Companies on or about January 27, 1946. These re-
placements have continued in the employ of the Companies, although
pursuant to the Settlement Stipulations referred to above, the dis-
7 Matter of United Gas Pipe Line Company, 56 N. L. R. B. 669.
8 See Matter of United Gas Pipe Line Company, footnote 7, supra.
e Matter of Pepeekeo Sugar Company, 59 N. L. It. B. 1532, and Matter of Wadham's
Division , Socony-Vacuum Oil Company, 54 N L. It. B. 1164, see also , Matter of Swift and
Company, 58 N. L. R. B. 657.
MARCELLUS M. MURDOCK 1431
charged employees have been reinstated. The IMU would not permit
these replacements to vote on the ground that they were hired on a
temporary basis and have been retained for the sole purpose of in-
fluencing the results of the elections. It urges, therefore, that the
eligibility of employees to vote be determined from the pay roll of
the Beacon for the week ending January 25, 1946, and of the Eagle
for the week ending January 26, 1946. However, the ITU and the
Companies assert that the employees in question are permanent addi-
tions to their respective staffs, and would have the Board utilize a
current pay roll. We are unable to determine at the present time
whether there is any substance to the position taken by the IMU.
Under the circumstances, it is our opinion that all persons hired as re-
placements since January 25 and 26, and presently in the employ of
the Companies, should be deemed presumptively eligible to vote, sub-
ject to the right of challenge.bo We are further of the opinion that
the policy of the Act can best be effectuated by directing immediate
elections, permitting all employees to participate who were employed
during the pay-roll period immediately preceding the date of this
Direction)-'
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Marcellus M. Mur-
dock, as Trustee for the Victoria Murdock Estate, Wichita, Kansas,
and with The Beacon Publishing Company, Wichita, Kansas, separate
elections 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 Seven-
teenth Region, acting in this matter as agent for the National Labor
Relations Board, and subject to Article III, Sections 10 and 11, of
said Rules and Regulations, and to our determination in Section V,
above, among employees in the units found appropriate in section IV,
above, who were employed during the pay-roll periods immediately
10 Nothing in this Direction should be construed as indicating that the Board has pre-
judged, in any respect , any of the questions which may be drawn into issue by a challenge
to the eligibility of these voters. See Matter of Longhorn Roofing Products, Inc., 67
N. L R. B 84.
ll It appears that the employees who were reinstated had been expelled by the ITU from
membership allegedly for dual unionism , and had thereafter been discharged by the
Companis pursuant to the provisions of their closed-shop contract with the ITU. Although
the ITU now asserts in its brief that the employees so discharged have lost their "rights
in employment" with the Companies , it is clear that, inasmuch as these employees have
been reinstated and are presently employed by the Companies , they are entitled to vote.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preceding the date of this Direction, including employees who did not
work during said pay-roll periods because they were ill or on vacation
or temporarily laid off, and including employees in the armed forces
of the United States who have since quit or been discharged for cause
and have.not been rehired or reinstated prior to the date of the elec-
tions, to determine whether or not they desire to- be represented by
Wichita Mailers Union, No. 85, affiliated with International Mailers
Union, or by Wichita Mailers Union No. 85, affiliated with the Inter-
national Typographical Union, for the purposes of collective bargain-
ing, or by neither.
CHAIRMAN HExzoG took no part in the consideration of the above
Decision and Direction of Elections.