The Item Co.

National Labor Relations Board - Board Decisions

Jun 9, 1954

108 N.L.R.B. 1261 (N.L.R.B. 1954)

THE ITEM COMPANY 1261
THE ITEM COMPANY ' and NEW ORLEANS NEWSPAPER
GUILD, LOCAL 170, CIO, Petitioner . Cases Nos . 15-RC-
1096 and 15 - RC-1097 . June 9, 1954
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon petitions duly filed under Section 9 (c) of the National
Labor Relations Act, a consolidated hearing was held before
John H. Iminel, Jr., 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 employees of the Employer. 3
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, in
Case No. 15-RC-1096, but no such question exists in Case No.
15-RC- 1097.
The Employer and Building Service Employees urged their
present contract, executed March 30, 1954, as a bar to the
proceedings in Case No. 15-RC-1096. Their previous contract
(1953-1954) covering these employees, whose normal expira-
tion date was April 30, 1954, contained a standard clause pro-
viding for its automatic renewal, unless notice to the contrary
was received by either party prior to 60 days before this date.
Building Service Employees notified the Employer, by letter
dated February 26, 1954, that it wished to reopen the contract
for negotiations. The petition herein was filed March 17, 1954,
during the period when the contract obviously was open. Ac-
cordingly, a contract executed in the face of such a timely
filed petition , cannot be considered a bar.4
4. The appropriate unit:
'The Employer' s name appears as amended at the hearing.
2In the circumstances of this case, we find no merit in the Employer's exception to the
hearing officer's refusal in Case No 15-RC-1096, to permit it to prove the lack of experience
of the petitioner in representing custodial employees. Trenton Foods, Inc., 101 NLRB
1769 at 1770. See also Grinnell Pajama Corp , 108 NLRB No. 289 footnote 2.
Similarly we reject the Employer's and Building Service Employees' contention that they
should be allowed to litigate the matter of Petitioner's showing of interest. It is well settled
that such question is solely for the administrative deternunation of the Board. Grinnell
Pajama Corp., supr, footnote 3. Moreover, we are administratively satisfied that the Pe-
titionerrhas made an adequate showing.
3At the hearing the following unions were permitted to intervene: International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Local 270, AFL, herein-
after referred to as the Teamsters; International Brotherhood of Electrical Workers, Local
130, AFL, hereinafter referred to as the IBEW; and Building Service Employees International
Union 275, AFL, hereinafter referred to as the Building Service Employees.
4Cf. Refrigeration Manufacturing, Inc., et al., 104 NLRB 510; International Harvester
Company, 88 NLRB 627, at pages 627-629.
108 NLRB No. 177.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Petitioner, in Case No. 15-RC-1096, seeks to add the
Employer's custodial employees to an existing unit which the
Petitioner now represents . The Intervenor, Building Service
Employees, and the Employer, oppose the Petitioner' s request,
contending , in effect, that the custodial unit is the only appro-
priate one.
Employer is engaged in the printing, publication, sale, and
distribution of a daily newspaper known as the Item. Virtually
all of the Employer's officers and inside employees work in
one 4-story building located in downtown New Orleans, Louisi-
ana. In addition the Employer occupies a single story building,
across the street from the main building, which contains the
job printshop and storage space for company vehicles and
equipment.
The Petitioner was recognized by the Employer for a unit of
editorial employees, without certification, in 1940. In 1950
the Petitioner herein filed a petition with the Board for a unit
consisting of a portion of the employees of the circulation
department; i.e., branch managers, circulation clerks, and
wholesalers. When the Employer objected to the inclusion of
the wholesalers, it was finally agreed that they would be ex-
cluded. The petition was thereupon withdrawn and the Em-
ployer and the Petitioner have since bargained for the em-
ployees of the editorial department and the branch managers
and circulation clerks in the circulation department, as a
single unit.5
The custodial unit sought to be added to the existing unit, is
comprised of 1 maid, 8 porters, 2 elevator operators, 2 utility
men, and 1 handy man. The Intervenor, Building Service Em-
ployees, won a consent election among these employees 6 on
February 6, 1951, and since shortly after this time, it and the
Employer have been parties to successive collective- bargaining
contracts covering this unit. The custodial employees are part
of the approximately 24 employees in the maintenance depart-
ment and are carried on this payroll along with electricians
and carpenters who are presently represented under oral
agreements between their unions and the Employer. There are
several employees, also carried on the maintenance depart-
ment payroll in the job printshop, 2 of whom are represented
by the Pressman 's Union and by the Mailer's Union , respec-
tively. There are also 3 telephone operators on this depart-
mental payroll who are currently unrepresented.
5It is this same editorial-circulation department unit to which the Petitioner also seeks to
add a group of employees in Case No. 15-RC- 1097.
6 Neither the utility metalmen nor the handy man were included in the description of the
unit originally certified to Building Service Employees. The parties, however, have since
added these employees to the unit. The utility metalmen are engaged principally in picking
up and melting down metal, and assist in cleaning and janitor work when not otherwise
occupied. The handy man performs cleaning and other similar services throughout the
building. On occasion he relieves other custodial employees from their duties.
THE ITEM COMPANY I Z63
The Board has defined the optimum bargaining unit in the
newspaper industry to be one comprising employees in all
nonmechanical departments.' Petitioner's request would tend
to approach the optimum unit. On the other hand, as noted,
Building Service Employees and the Employer have, during the
past 3 years, established a collective-bargaining history for
these custodial employees as a separate unit.
Under these circumstances, we believe that either a single
unit consisting of the editorial department employees, branch
managers and circulation clerks from the circulation depart-
ment, and these custodial employees, as requested by the Pe-
titioner, or a separate unit for the custodial employees as
presently represented by Intervenor, Building Service Em
ployees, may be appropriate.
We shall, therefore, direct an election among the custodial
employees in the voting group described as follows: All maids,
porters, elevator operators, utility metalmen, and handy men
employed by The Item Company, but excluding electricians
and all other employees, guards, professional employees,
and supervisors as defined in the Act.' If a majority
of the employees voting cast ballots for the Petitoner,
they will be taken to have indicated their desire to be a
part of a single unit together with the editorial-circulation
department employees currently represented by the Peti-
tioner, and the Petitioner may bargain for them as part of
such unit.
The Petitioner in Case No. 15-RC-1097 seeks to add a
group of seven outside circulation department employees who
are generally called street salesmen , driver - salesmen, or
wholesalers ,' to the unit of editorial-circulation department
employees which the Petitioner presently represents. The Pe-
titioner maintains that these employees have been heretofore
unrepresented. The Teamsters and the Employer contend that
their current contract includes these employees; that they
have bargained with respect to these employees since, at
least , 1950; and that, in any event, the unit petitioned for is
not appropriate.
The wholesalers solicit new " spots" for the sale of news-
papers; recruit vendors to sell the papers on street corners;
and are responsible for collections from all sources of sales
within their respective areas . In addition, they drive their
own vehicles, for which they receive a weekly allowance, in
order to deliver newspapers to some of the spots , at the same
time ascertaining whether the vendors are doing their work
properly, and insuring that an adequate supply of newspapers
7 The Chicago Daily News, Inc., 98 NLRB 1235, at page 1237.
9 The parties agreed that the unit sought to be added could be thus described. The IBEW
conditioned its agreement to this description, upon the specific exclusion of "electricians."
9 Herein referred to as wholesalers.
I 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is always on hand.10 They do not have regular hours, as do
most of the employees in the plant. Their wages are computed
by adding a weekly commission based upon sales at their
"spots" to a weekly base wage. It does not appear from the
record that the wholesalers have office space at the plant;
indeed, it seems clear that these men work almost entirely
outside the plant, and have little or no contact with the inside
employees. Moreover, the work of the wholesalers differs sub-
stantially from that of the other employees. u Under the cir-
cumstances, we are persuaded that the wholesalers have
interests wholly unrelated to those of the employees in the
Petitioner ' s present bargaining unit.12 Moreover , the group
sought to be added, does not constitute a residual group of
unrepresented employees, such as the Board has on occasion
found to be an appropriate unit, as the group sought does not
include other unrepresented employees in the plant.
Under these circumstances, we shall dismiss the petition in
Case No. 15-RC-1097.13
[The Board dismissed the petition.]
[Text of Direction of Election omitted from publication.]
Member Peterson , dissenting in part:
I see no compelling reason for denying an election to the
wholesalers, to determine whether they wish to become part
of the editorial-circulation department unit as urged by the
Petitioner or whether they should be a part of the unit now
represented by the Teamsters. Accordingly, I would accord
them a self-determination election . In other respects , I agree
with the majority.
10 The Employer has between 500 and 600 "spots" located throughout the city for the
distribution of its newspapers. In order that it may blanket the city as soon as possible with
its editions, most of the "spots" are originally supplied by Employer's trucks, whose
drivers are represented by the Teamsters. The delivery duties of the wholesalers are
limited mostly to final editions and tothose "spots" having the largest volume of sales.
ilBranch managers, who appear to have jobs in outlying areas similar to those of the
wholesalers, are within the unit to which Petitioner herein seeks to add the wholesalers.
However, since the branch managers were added by mutual agreement of the Petitioner and
the Employer, such an inclusion is not deemed controlling on the Board for this unit de-
termination.
12 The Chicago Daily News, Inc., 98 NLRB 1235, at page 1237. In this case, although pe-
titioning for substantially all of the employees in the nonmechanical departments, in accord
with the Board's idea of the optimum unit in the newspaper industry, the Petitioner asked
to exclude outside circulation employees, similar to the wholesalers here. The Employer
opposed this, contending that these employees should be included in the unit. The Board,
noting the different type of work performed, in addition to the fact that these employees
were employed away from the plant with the resultant lack of contact with the inside em-
ployees, excluded the outside circulation employees from the unit.
13Inasmuch as we are granting the Employer's and the Teamsters' motions to dismiss the
petition in Case No. 15-RC-1097 we deem it unnecessary to rule on their other contentions.