The Constitution Publishing Co.

National Labor Relations Board - Board Decisions

Feb 11, 1949

81 N.L.R.B. 614 (N.L.R.B. 1949)

In the Matter of THE CONSTITUTION PUBLISHING COMPANY, EMPLOYER
and AMERICAN FEDERATION OF LABOR, PETITIONER
Case No. 10-RC-363.-Decided February 11, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing offi-
cer of the National Labor Relations Board. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
The Employer's request for oral argument is denied as the record,
in our opinion, adequately presents the issues and the positions of
the parties.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization named below claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks to represent a unit composed of all employees
in the Employer's advertising department, including the employees
in the classified advertising, national advertising, local advertising,
advertising art, and advertising dispatch and mat sections, but ex-
cluding all watchmen, guards, professional employees, confidential
secretaries, and supervisors as defined in the Act. The Employer con-
tends that the proposed unit is inappropriate, asserting that the em-
ployees sought by the Petitioner should be separated into four units,
consisting of employees grouped as follows: (1) all employees in
*Chairman Herzog and Members Reynolds and Gray.
81 N. L. R. B., No. 106.
614
THE CONSTITUTION PUBLISHING COMPANY 615
the mat and dispatch rooms; (2) all employees in the advertising art
department; (3) all outside salesmen in the classified, national, and
local advertising departments; and (4) a residual unit including
telephone girls, counter girls, stenographers, and all other employees
in the classified, national, and local advertising departments not men-
tioned above. The Employer likewise would exclude confidential sec-
retaries and supervisors from its requested units.
At the time of the hearing, there were approximately 60 employees
in the advertising department. All these employees work under the
general supervision of the Advertising Director. With the exception
of the counter girls, all are quartered in adjacent rooms or enclosures
located on the mezzanine floor of the Employer's building. They per-
form closely interrelated functions in connection with the solicitation
and preparation of advertisements that appear in "The Atlanta Con-
stitution," a daily newspaper published by the Employer. Make-up
men in the dispatch room prepare "dummy" advertisements, mat boys
file and issue mats of advertisements, and dispatch boys provide a
messenger service for the exclusive use of the advertising department.
The clerical employees, office boy, and outside salesmen or solicitors,
perform the customary duties of their occupations. Telephone girls
receive unsolicited advertisements over the telephone, and counter
girls and counter men perform a similar function at the counter.
The art department employees prepare lay-out designs for advertise-
ments upon the request of the outside salesmen.
All employees in the advertising department are paid on a salary
basis and, with the exception of outside salesmen, work 5 days each
week? The Employer follows a general policy of promotion from
within in connection with the filling of vacancies, and all employees,
irrespective of classification, have the same general working conditions
and benefits. There has been no history of collective bargaining
concerning the employees in the advertising department.2
Although we disagree with the Employer's assertion that four
separate units are appropriate, there are factors pointing to the ap-
propriateness of a separate unit composed only of outside salesmen,
such as the higher earnings and slightly different working hours of
the latter as compared to those of the other employees in the advertis-
ing department. However, the fact that all the employees in the
advertising department, including the outside salesmen, work in close
i Outside salesmen work a 51/2-day week . They, and the telephone girls, also are paid a
monthly bonus that is based upon the amount of advertising space sold
2 At the time of the hearing, all the Employer 's employees, with the exception of those in
the advertising , circulation , and promotion departments , and the cashier ' s office, were
separately represented either in craft or departmental units for the purposes of collective
bargaining.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cooperation and, to a great extent, under the same conditions, and
are subject to the same personnel policies, indicate that their grouping
into one unit is appropriate. Moreover, the work of the outside sales-
men is directly related to that performed in the office by the other
advertising department employees, notwithstanding the fact that a
substantial portion of the former's work is performed outside the
office. In view of the foregoing, we find that all the employees in
the advertising department together constitute a single appropriate
unit.'
The Employer further asserts that its art department employees
are professional employees within the meaning of Section 2 (12) of
the Act. It contends that, even if the Board should determine that
a single unit composed of all the Employer's advertising depart-
ment employees may be appropriate, the Board is nevertheless re-
quired to direct a self-determination election, as provided in Sec-
tion 9 (b) (1) of the Act, among the art department employees in
order to determine whether they desire to be included in the same
unit with the other advertising department employees. We find
insufficient merit in the Employer's contention. As stated above,
the art department employees prepare advertising lay-out designs.
Preparatory to carrying out their duties, the four employees in this
category are given instructions by their supervisor concerning the
required designs. Thereafter, they translate the concept of the ad-
vertisement into a sketch and perform the necessary lay-out work.
Collegiate training is not an essential qualification for the position
of artist, although an undisclosed amount of commercial art train-
ing is required. Moreover, the record reveals that the Employer once
employed a worker who lacked any previous art training. In view
of the foregoing, it is clear that the art department employees are
not professional employees within the meaning of Section 2 (12) of
the Act. We therefore find it unnecessary to direct a self-determina-
tion election among these employees.
The parties are in disagreement as to the status of the art depart-
ment manager, the make-up man and supervisor of the mat and
dispatch room, and the supervisor and the assistant supervisor of
the dispatch boys, whom the Petitioner would include in the unit,
but whom the Employer would exclude as supervisors within the
meaning of the Act 4 The record shows that each of these men re-
sponsibly directs the work of his subordinates and has the authority
effectively to recommend the discipline or discharge of employees
8 Matter of Bethlehems' Globe Publishing Company, 74 N L. R. B. 392.
4 The individuals in these disputed classifications are w F. McFall , Clark Shannon,
Roger Moore, and Carl Tippens, respectively.
THE CONSTITUTION PUBLISHING COMPANY 617
under his supervision. Accordingly, we find that the art depart-
ment manager, the make-up man and supervisor of the mat and dis-
patch room, and the supervisor and the assistant supervisor of the
dispatch boys are supervisors within the meaning of the Act. We
shall therefore exclude them from the unit in accordance with the
Employer's request.5
We find that all employees in the Employer's advertising depart-
ment, including the employees in the classified advertising, national
advertising, local advertising, advertising art, and advertising dis-
patch and mat sections, but excluding all watchmen, guards, pro-
fessional employees, confidential secretaries," the art department
manager, the make-up man and supervisor of the mat and dispatch
room, the supervisor and the assistant supervisor of dispatch boys,
and all other 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.
5. The determination of representatives :
The Petitioner contends that a part-time counterman' and a part-
time office boy 8 are ineligible to vote, whereas the Employer asserts
that they are eligible. The part-time counterman works from 3
to 5 nights each week and the part-time office boy works from 2 to
3 hours each day. As these employees are regular part-time em-
ployees, and their interests are similar to those of the full-time
employees, we find that they are eligible to vote in the election here-
inafter directed.°
DIRECTION OF ELECTION
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
supervision of the Regional Director for the Tenth Region, and sub-
ject to Sections 203.61 and 203.62 of National Labor Relations Board
Rules and Regulations-Series 5, as amended, among the employees
in the unit found appropriate in paragraph numbered 4, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction of Election, including employees who did not
5 Matter of Foster Wheeler Corporation, 79 N. L R. B. 1062 ; Matter of United States
Gypsum Company, 79 N L R B 536.
6 Leila Vonnerson, Clara Ilarper, and Myrtice Owens are excluded in this category.
T G E Strickland.
9 Tom O'Neal.
9 Matter of Chicago Journal of Commerce, Inc., 73 N L R. B. 1213, 1215 ; Matter of The
Register d Tribune Company, 73 N. L. R. B. 728, 732; and Matter of Imperial Brass Manu-
facturing Company, 72 N L. It. B. 513, 514.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work during said pay-roll period because they were ill or on vaca-
tion or temporarily 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 deter-
mine whether or not they desire to be represented, for purposes of
collective bargaining , by American Federation of Labor.