United Press Associations

National Labor Relations Board - Board Decisions

Aug 20, 1937

3 N.L.R.B. 344 (N.L.R.B. 1937)

In the Matter Of UNITED PRESS ASSOCIATIONS and AMERICAN NEWS-
PAPER GUILD
Case No. R-406-Decided August 20, 1937
News Collecting and Distributing Service-Investigation of Representatives:
agreement for election-Unit Appropriate for Collective Bargaining : employees
of subsidiary included in ; supervisory and managerial employees excluded from-,
Election Ordered-Certiflcation of Representatives.
Mr. David A. Moscovitz for the Board.
Mr. Thomas J. Edwards, of Cleveland, Ohio, for the United Press
and the Los Angeles Service.
Mr. Abraham J. Isserman, of Newark, N. J., for the Guild.
Mr. Martin Kurasch, of counsel to the Board.
DECISION
STATEMENT OF THIS CASE
The petitioner, the American Newspaper Guild, herein called the
Guild, filed with the Regional Director for the Second Region (New
York, New York) a petition, verified May 12, 1937, alleging that a
question affecting commerce had arisen concerning the representation
of the news reporters, writers, copy readers, filing editors, editors,
tabulators, and all persons contributing to news reports, including
librarians, news department stenographers, and others employed in
the offices of the United Press Associations, herein called the United
Press, within the continental limits of the United States, herein re-
ferred to collectively as editorial employees, and requesting an in-
vestigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On June 21, 1937, the National Labor Relations Board,
herein called the Board, acting pursuant to Article III, Section 3 of
National Labor Relations Board Rules and Regulations-Series 1,
as amended, ordered the Regional Director to conduct an investiga-
tion and to provide for an appropriate hearing. Thereafter the peti-
tioner filed with the Board an amended petition, verified June 29,
1937, in which it alleged that there should be added to the classes of
employees specified in the original petition and made part of the
same bargaining unit, (1) the like classes of employees of the City
News Service of Los Angeles, Inc., herein called the Los Angeles
344
DECISIONS AND ORDERS 345
Service, and (2) the employees who are the bureau managers of the
several bureaus maintained by the United Press throughout the con-
tinental United States (with the exception of the bureau managers
of the bureaus maintained at division points and the bureau at
Washington).
The United Press and the Guild entered into a stipulation on May
20, 1937, and a further stipulation on July 7, 1937. By these stipu-
lations it was agreed that an election by secret ballot should be con-
ducted by and under the supervision of the Board. With the ex-
ception of two matters herein referred to, the terms, conditions and
procedure under which such election should be conducted were fixed
by the stipulation. The two matters upon which no agreement could
be reached are:
1. Whether the editorial employees of the Los Angeles Service
should be made part of the same bargaining unit as the editorial em-
ployees of the United Press and should be permitted to vote in the
election.
2. Whether the bureau managers of the United Press, other than
the managers of the bureaus maintained at Washington and at the
division points, should be considered as a part of the editorial em-
ployees of the United Press and be permitted to vote in the election.
On July 6, 1937, the Regional Director issued and duly served a
notice of hearing to be held at New York, New York, on July 8,
1937. Pursuant to the notice, a hearing was held on July 8th before
Herman A. Gray, the Trial Examiner duly designated by the Board.
The Guild, the United Press, and the Los Angeles Service were rep-
resented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
produce evidence bearing upon the issues was afforded to the parties,
and the parties were granted a reasonable period for argument at
the close of the hearing and were permitted to file briefs. The
United Press and petitioner did thereafter file briefs by their respec-
tive attorneys.
Upon the entire record in the case the Board makes the following :
FINDINGS OF FACT
I. TIIE BUSINESS OF THE COMPANY
The United Press Associations is a corporation with its principal
offices in New York City, engaged, in substantial part, in the world
collection, sale, and distribution of news to newspapers, radio stations
and magazines, domestic and foreign. The United Press maintains
66 bureaus throughout the United States. Five bureaus are main-
tained at so-called "division points"-Atlanta, Georgia; Kansas City,
Missouri; New York, New York; San Francisco, California, and
346 NATIONAL LABOR RELATIONS BOARD
Chicago, Illinois. Each is the focal point of one of the five geo-
graphic divisions into which the United Press has divided the coun-
try. The staff of each bureau collects, edits and sends out the news
by telephone, telegraph, and mail, both directly to clients, and to the
bureau at the division point, from which place it 'is transmitted over
the country. There is no uniformity in the size of a bureau-many
have only one employee, the New York office has over 100.1
The Los Angeles Service was first formed in 1931 or 1932 by
Marvin Willard. It is a corporation engaged in selling its news
service to newspapers in and around Los Angeles and to the United
Press, and it serves newspapers for the United Press. The Los
Angeles Service employs 17 men.
The United Press, in 1934, purchased 80 per cent of the stock
of the Los Angeles Service. Willard retained the ownership of 20
per cent of the stock. The United Press thereupon elected four of
the five members of the board of directors of the Los Angeles Serv-
ice, two of whom were Hugh Baillie, president of the United Press,
and Frank Bartholemew, Pacific Coast division manager of the
United Press. Willard was the fifth member.
II. THE UNION
The American Newspaper Guild is a labor organization, which
admits to membership all of the editorial employees of the United
Press and of the Los Angeles Service. It also admits bureau man-
agers to membership.
III. THE APPROPRIATE UNIT
A. The Los Angeles Service
When the United Press purchased control of the Los Angeles
Service in 1934, the management of the Service was given by the
board of directors to Willard. Willard has charge of employing
and discharging the, staff of the Los Angeles Service, of determining
the salaries, and of directing the activities of the staff. Louis
Mickel, superintendent of bureaus for the United Press, who has
general supervision over the United Press bureaus, testified that he
took no part in the direction or supervision of the Los Angeles
Service.
The Los Angeles Service maintains a banking account in New
York, where most of its funds are kept. Salary checks for the
I A tabulation of the list of the Editorial Department Employees will show that there
are 68 bureaus ( including the Washington , D. C, Bureau and the Washington News Serv-
ice), of which 19 are one-man bureaus , ten are two-man bureaus , six are three -man bureaus,
seven are four-man bureaus , five are five -man bureaus , six are six-man bureaus, and 15
bureaus have a staff of more than six men. Board's Exhibit No. 2.
DECISIONS AND ORDERS 347
staff of the Los Angeles Service and checks covering from 90 to
95 per cent of the expenses of the Los Angeles Service are signed
in New York by officials of the United Press at the offices of the
United Press. Mickel and Fancher, both of whom hold offices in
the United Press, but have no official connection with the Los
Angeles Service, are among those who sign these checks. The book-
keeping for the Los Angeles office is handled, at least in part, in the
New York offices of the United Press. The Los Angeles Service
is operated by Willard so as to keep the expenses within certain
limits which are defined by the New York office of the United Press.
Although individual expenditures are left to the discretion of Wil-
lard, the total expenses are checked by the United Press.
The United Press also maintains a bureau at Los Angeles in which
there are 16 men. But the two Los Angeles groups maintain a
rough differentiation of function with respect to covering news for
the United Press. The Los Angeles Service covers certain routine
news sources, such as the courts, for the United Press ; for this the
United Press pays $75 per week. The Los Angeles Bureau of the
United Press does not cover these sources.
The Los Angeles Service is thus seen to be an integral part of
the United Press system. The articulation is so close as to financial
matters that it is difficult to conceive of the Los Angeles Service
maintaining an independent policy in collective bargaining, espe-
cially in view of the check exercised by the United Press on its total
expenses. That the supervision and direction of the personnel of the
Los Angeles Service has been in the hands of Willard is attributable
to the fact that he is the founder of the organization and is most
familiar with its operation. But he is subject to the will of the
board of directors, and hence of the United Press. It is significant
that Frank Bartholemew, Pacific Coast division manager of the
United Press, is a member of the board of directors. Since the
main argument for not including the editorial employees of the
Los Angeles Service rests upon the peculiar position of Willard,
and since that peculiar position may, at any moment, be changed by
the United Press, the fact that the Los Angeles Service operates to
supplement the United Press service, and the fact of immediate and
close financial control must override the nominal distinction. The
editorial employees of the Los Angeles Service are thus, in practical
effect, editorial employees of the United Press.
B. Bureau managers
Each of the United Press bureaus has a bureau manager. In one-
man bureaus, the one man is designated a bureau manager. The
duties of the bureau manager correspond, in large part, to the duties
348 NATIONAL LABOR RELATIONS BOARD
of the other members of the bureau staff. He writes stories, edits
news, sends news over the wires and does reporting work. In the
one-man bureau, of course, he performs all of the work by himself.
In the other bureaus, there is added the duty of directing the work
of the other men. As the size of the bureau increases, it is evident
that the scope of the necessary supervision will be enlarged and that
a greater proportion of the bureau manager's' time will have to be
spent in directing the other members of the staff in the covering of
news. When the bureau manager is out of the office, another man,
who can exercise all the powers of a bureau manager, will be left in
charge. The substitute is known as a second-man, but that is not a
regular designation, and, in fact, the bureau manager may choose
anyone to take charge. It seems clear that the primary responsi-
bility rests with the bureau manager.
The bureau manager and the other employees at the bureau are
encouraged to make contacts with prospective clients. The bureau
manager is sometimes given United Press claims to collect, and has,
to some extent, a control over office expenses, although the bureau is
run in accordance with a budget. All accounts, even though the
client may be directly serviced by the bureau, are payable at the New
York office,
The bureaus of the United Press are scattered over the country.
Each bureau manager is subject to the supervision of the bureau
manager of his respective division point. The division manager and
the superintendent of bureaus constitute the next steps in the hier-
archy. Normally, the bureau manager will be the sole representative
of the United Press who has direct contact with the bureau staff. He
is on the scene, and for reasons of convenience and of efficiency, he
has the power to hire and to discharge. Although his judgment may
be, overruled, the record indicates that, as a practical matter, his
judgment is controlling. Since he is in the best position to adjudge
competency, he recommends salary increases, though he cannot grant
such increases himself.
That bureau managers are sometimes shifted to larger bureaus,
where they will only be regular staff employees, is a complicating
factor. Thus, half of the editorial employees of the Washington
office are former bureau managers who have acquired the experience
necessary for the more important Washington posts. Such a change
is in the nature of a promotion in that the salary of a staff employee
of a larger bureau may be greater than that of a bureau manager of
a small bureau. But, despite this shifting, the presence of the man-
agerial and supervisory functions attached to the position of bureau
manager in other than one-man bureaus must, in a determination of
bargaining unit, outweigh the inconveniences that result from hav-
ing these employees, as they shift their status, lose or regain their
DECISIONS AND ORDERS 349
right to be included within a unit for purposes of collective bargain-
ing. Except in the case of one-man bureaus, the Board believes that
inclusion of the bureau manager in the same unit as the other mem-
bers of his bureau would not be consonant with the most efficient
exercise of his duties with respect to those employees.
As to one-man bureaus, the title of bureau manager can not of
course signify any factual managerial position. There are no edi-
torial employees to supervise or direct. The bureau manager in a
one-man bureau must perform all of the functions of a regular em-
ployee. Although it is true that he may, on occasion, be required to
look after the business affairs of his office, his interests are those of
the regular staff members, and, since he has no problems of per-
sonnel, his representation together with staff members elsewhere will
not be prejudicial to the United Press.
In view of all the afore-mentioned facts and in order to insure to
the editorial employees of the United Press and of the Los Angeles
Service the full benefit of their right to self-organization and to
collective bargaining, and otherwise to effectuate the policies of the
Act, we find that all the editorial employees of the United Press and
of the Los Angeles Service, excluding the bureau managers of
bureaus having more than one man and the bureau managers of the
bureaus maintained at the division points and the bureau at Wash-
ington, but including the bureau managers of one-man bureaus, con-
stitute a unit appropriate for the purposes of collective bargaining.
IV. QUESTION CONCERNING REPRESENTATION
On the basis of the facts stated in the opinion and the stipulations
entered into by the parties we find that a question has arisen concern-
ing the representation of the editorial employees of the United Press.
V., THE EFFECT OF TILE QUESTION OF REPRESENTATION ON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the United
Press and of the Los Angeles Service described in Section I above,
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VI. CONDUCT OF ELECTION
The United Press and the Guild have agreed to an election by
secret ballot to determine the proper representatives for collective
bargaining and thus to resolve the question concerning representa-
tion. The election shall be conducted according to the terms and
conditions agreed to by the parties in the afore-mentioned stipula-
tion and supplemental stipulation.
350 NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
On the basis of the above findings of fact, the Board makes the
following conclusions of law:
1. A question affecting commerce has arisen concerning the repre-
sentation of the editorial employees of the United Press, within the
meaning of Section 9 (c), and Section 2, subdivisions (6) and (7)
of the National Labor Relations Act.
2. All the editorial employees of the United Press and of the Los
Angeles Service, excluding the bureau managers of bureaus having
more than one man and the bureau managers. of the bureaus main-
tained at the division points and the bureau at Washington, but in-
cluding the bureau managers of one-man bureaus, constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the National Labor Relations Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, 49 Stat. 449, and pursuant to Article III, Section 8
of National Labor Relations Board Rules and Regulations-Series
1, as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with the United
Press Associations, an election by secret ballot in accordance with
the terms and conditions agreed upon in the stipulation and supple-
mental stipulation entered into by the parties, shall be conducted
within 30 days from the date of this Direction, under the direction
and supervision of the Regional Director for the Second Region,
acting in this matter as agent for the National Labor Relations
Board, and subject to Article III, Section 9 of said Rules and Regu-
lations-Series 1, as amended, among the editorial employees of the
United Press and of the Los Angeles Service, excluding the bureau
managers of bureaus having more than one man and the bureau
managers of the bureaus maintained at the division points and the
bureau at Washington, but including the bureau managers of one-
man bureaus, to determine whether they desire to be represented by
the American Newspaper Guild for the purposes of collective bar-
gaining.
MR. EDWIN S. SMITH took no part in the consideration of the above
Decision and Direction of Election.
DECISIONS AND ORDERS 351
[SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTION
September 18, 1937
On August 20, 1937, the National Labor Relations Board, herein
called the Board, issued a Direction of Election in the above-entitled
proceeding, the election to be held within 30 days from the date of
the Direction, under the direction and supervision of the Regional
Director for the Second Region (New York, New York). The Board
having been advised by the Regional Director that a longer period
is necessary, hereby amends the Direction of Election issued on August
20, 1937, by striking therefrom the words "within thirty (30) days
from the date of this Direction," and substituting therefor the words
"within sixty (60) days from the date of this Direction."
MR. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Amendment to Direction of Election.
[ SAME TITLE]
CERTIFICATION OF REPRESENTATIVES
October 95, 1937
On May 12, 1937, the American Newspaper Guild, herein called
the Guild, filed with the Regional Director for the Second Region
(New York City) a petition alleging that a question affecting com-
merce had arisen concerning the representation of news reporters,
writers, copy readers, filing editors, editors, tabulators, and all per-
sons contributing to news reports, including librarians, news depart-
ment stenographers, and others employed in the offices of the United
Press Associations, herein called the United Press, within the con-
tinental limits of the United States, herein referred to collectively
as editorial employees, and requesting an investigation and certifica-
tion of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On June
29, 1937, the Guild filed with the National Labor Relations Board,
herein called the Board, an amended petition in which it alleged that
there should be added to the classes of employees specified in the
original petition and made part of the same bargaining unit (1) the
like classes of employees of the City News Service of Los Angeles,
Inc., herein called the Los Angeles Service, and (2) the employees
who are the bureau managers of the several bureaus maintained by
352 NATIONAL LABOR RELATIONS BOARD
the United Press throughout the continental United States (with the
exception of the bureau managers of the bureaus maintained at divi-
sion points and the bureau at Washington).
The United Press and the Guild entered into a stipulation on May
20, 1937, and a further stipulation on July 7, 1937. By these stipu-
lations it was agreed that an election by secret ballot should he
conducted by and under the supervision of the Board. With the
exception of two matters herein referred to, the terms, conditions,
and procedure under which such election was to be conducted were
fixed by,the stipulation. The two matters upon which no agreement
could be reached were:
1. Whether the editorial employees of the Los Angeles Service
should be made part of the same bargaining unit as the editorial' em-
ployees of the United Press and should be permitted to vote in the
election.
2. Whether the bureau managers of the United Press, other than
the managers of the bureaus maintained at Washington and at the
division points, should be considered as a part of the editorial em-
ployees of the United Press and be permitted to vote in the election.
Pursuant to notice duly issued and served, a hearing was held at
New York, New York, on July 8, 1937, before Herman A. Gray, the
Trial Examiner duly designated by the Board. On August 20, 1937,
the Board issued a Decision and Direction of Election. The Direc-
tion of Election provided that an election by secret ballot in accord-
ance -with the terms and conditions agreed upon in the stipulation
and supplemental stipulation be held among the editorial employees
of the United Press and of the Los Angeles Service, excluding the
bureau managers of bureaus having more than one man and the
bureau managers of the bureaus maintained at the division points
and the bureau at Washington, but including the bureau managers of
one-man bureaus, to determine whether they wished to be repre-
sented by the American Newspaper Guild for the purposes of col-
lective bargaining. On September 18, 1937, the Board issued an
Amendment to the Direction by which the time within which the
election was to be held was changed from thirty (30) days from the
date of the Direction to sixty (60) days from the date of the
Direction.
Pursuant to the Direction of Election and the Amendment to the
Direction of Election, a secret ballot was conducted through the mails
and by cablegrams. All returned ballots had to show a post mark of
not later than midnight, October 7, 1937, to be acceptable. Full
opportunity was accorded to all the parties to this investigation to
participate in the conduct of the secret ballot and to make challenges.
DECISIONS AND ORDERS 353
On October 13, 1937, the Regional Director, acting pursuant to
Article III, Section 9 of National Labor Relations Board Rules and
Regulations-Series 1, as amended, issued and duly served upon
the parties to the proceeding her Intermediate Report on the ballot.
No exceptions to the Intermediate Report have been filed by any
of the parties.
As to the results of the secret ballot the Regional Director re-
ported as follows :
Total Number Eligible to Vote_________________________________ 421
Total Number of Ballots Cast_________________________________ 374
Total Number of Votes in favor of American Newspaper Guild__ 277
Total Number of Votes against the American Newspaper Guild_ 84
Total Number of Blank Votes________________________________ 2
Total Number of Void Ballots________________________________ 9
Total Number of Challenged Votes____________________________ 2
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 8 of National
Labor Relations Board 'Rules and Regulations-Series 1, as
amended,
IT IS HEREBY CERTIFIED that the American Newspaper Guild has
been selected by a majority of the editorial employees of the United
Press and of the Los Angeles Service, excluding the bureau man-
agers of bureaus having more than one man and the bureau managers
of the bureaus maintained at the division points and the bureau at
Washington, but including the bureau managers of one-man bureaus,
as their representative for the purposes of collective bargaining, and
that pursuant to Section 9 (a) of the National Labor Relations Act,
the American Newspaper Guild is the exclusive representative of the
editorial employees of the United Press and of the Los Angeles
Service, excluding the bureau managers of bureaus having more than
one man and the bureau managers of the bureaus maintained at the
division points and the bureau at Washington, but including the
bureau managers of one-man bureaus, for the purposes of collective
bargaining in regard to rates of pay, wages, hours of employment
and other conditions of employment.