Malden Publications, Inc.

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees in voting group 2 selects the Operating Engineers, they will be taken to have indicated their desire to constitute a separate bar- gaining unit, and the Regional Director conducting the election is in- structed to issue a certification of representatives to the Operating Engineers for such unit, which the Board, under such circumstances, finds to be appropriate for purposes of collective bargaining. How- ever, in the event a majority of the employees in voting group 2 does not vote for the Operating Engineers, those employees will appro- priately be included with the employees in voting group 1 and their votes will be pooled with those in voting group 16 The aforesaid Regional Director is instructed to issue a certification of representa- tives to the labor organization selected by the majority of the em- ployees in voting group 1 or in the pooled group, as the case may ber which the Board, in such circumstances, finds to be a unit appropriate for purposes of collective bargaining. [Text of Direction of Elections omitted from publication.] MEMBERS FANNING and KIMBALL took no part in the consideration of the above Decision and Direction of Elections. will be certified jointly as the bargaining representative of the employees in the entire, appropriate unit. The Employer may then Insist that they bargain jointly for such employees as a single unit. 9 If the votes are pooled , they are to be tallied In the following manner : The votes: for the labor organization seeking a separate unit in voting group 2 shall be counted as. valid votes, but neither for nor against the other labor organizations on the ballot. All other votes are to be accorded their face value , whether for representation by the afore- mentioned unions on the ballot or for no union. Malden Publications, Inc., Medford Publications, Inc. and Local 32, Newspaper Guild of Greater Boston, American Newspaper Guild, AFL-CIO, Petitioner. Case No. 1-RC-5471. November 28, 1960 DECISION AND ORDER CLARIFYING CERTIFICATION On February 10, 1959, the Regional Director for the First Region. issued a certification of representatives in the above-entitled proceed- ing, in which the Petitioner was certified as the exclusive bargaining representative of the employees of the editorial department of the Employer's two publications located at Malden and Medford, Massa chusetts, excluding, inter alia, supervisory employees. Thereafter, on April 22, 1960, the Petitioner filed a request for clarification of certification, in which it requested the Board to find that Archie Birt- well, assistant editor of the Malden News, is not a supervisory em- ployee, and thus within the certified unit, and on May 23, 1960, the Employer filed a statement in opposition thereto. Thereafter, on. 129 NLRB No. 93. MALDEN PUBLICATIONS, MEDFORD PUBLICATIONS 793 June 10, 1960, the Petitioner requested that a hearing be held in this matter to determine the facts with respect to the appropriateness of including Archie Birtwell in the certified bargaining unit. On July 12,1960, the Board remanded the proceeding to the Regional Director for the purpose of conducting a hearing on the issue raised in the Petitioner's motion for clarification. On September 16, 1960, in accordance with the above order, a hear- ing was held before John R. Coleman, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provision of Section 3 (b) of the Act, the Board has delegated its power herein to a three-member panel [Chairman Leedom and Members Fanning and Kimball]. The record shows that the Employer operates newspapers in Malden, Massachusetts (Malden News) and Medford, Massachusetts (Med- ford Mercury). These publications are under the direction of Philip Scheier, executive editor, who maintains his office at Malden. Mr. Al Frezza is the managing editor of the Medford Mercury, and the record reflects that the parties have agreed to exclude him from the certified unit. Archie Birtwell, whose inclusion in the unit is dis- puted, is assistant editor of the Malden News. Archie Birtwell directs the work of five employees, namely, two general news reporters, one sports reporter, one engraver-librarian, and one maintenance man. His job embraces both reportorial and edi- torial functions. He edits the copy submitted by reporters and feature writers, is responsible for the makeup, editorially, of the Malden News, assigns editorial employees to their jobs in the editorial de- partment, and reporters to their stories. In the performance of these functions he does not appear to have any authority to hire, discharge, discipline, or change the status of any employees, although he is often consulted with respect to some of these matters. For example, his recommendations as to the retention of probationary employees are, apparently, accepted without independent investigation by higher supervision. The record further shows that in the absence of the executive editor, Birtwell has full authority and responsibility over the editorial staffs of both the Malden News and Medford Mercury. He assumes these duties on a regular basis at least 2 hours each day. This is, in addition to fulltime substitution for 3 weeks in the summer when the executive editor is on vacation, for 3 weeks when the execu- tive editor replaces Managing Editor Al Frezza at Medford while Frezza vacations, and for the equivalent of 2 weeks during the year when the executive editor is attending meetings, conventions, and seminars. Though there is some evidence that the direction of employees by Birtwell is in some respects a fairly routine matter, the record estab- 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lishes, and we find that Birtwell is responsible for directing the em- ployees under him in matters requiring the use of independent judgment, not only when he is substituting for Scheier, an admitted supervisor, but also when carrying out his normal, day-to-day duties.' Accordingly, we find that he is a supervisor within the meaning of Section 2 (11) of the Act. We shall, therefore, exclude him from the certified unit. [The Board clarified the certification by,specifically excluding, in the description of the appropriate unit, the classification of assistant editor.] 1 The Salt Lake Tribune Publishing Company, et al, 92 NLRB 1411 , 1416-1417, 1419-1420; see also, Chandler's Shoe Store, 123 NLRB 872 , 873-874. - Major Service Co., a Washington corporation , Plaintiff and Freight Checkers, Traffic Clerks and Clerical Employees Union, Local 342, et al., Defendants. Case No. AO-15. Novem- ber 09, 1960 ADVISORY OPINION This is a petition filed by Freight Checkers, Traffic Clerks and Clerical Employees Union, Local 342 (herein mentioned as Local 342), "for an advisory opinion as to whether certain picketing at the premises of a gas station operated by Major Service Co. is subject to the Board's jurisdiction." 'I. In material part, said petition alleges the following : 1. The "other party to the proceeding" is Major, a Washington corporation, of 1318 B Madison Street, Seattle, Washington. Major has brought suit against Local 342 and two individuals in the King County Superior Court of the State of Washington for damages and injunctive relief based upon picketing by said Union at the'premises of a gas station located at 107th and Aurora Avenues in Seattle, "al-' legedly operated" by Major and known as the Gov-Mart North Gas Station. Said suit has been docketed as Case No. 553127. 2. On or about May 25,1960, Local 342 commenced picketing at the premises of Mission Supply Co. (a/k/a Gov-Mart), herein called Mis- sion, in Seattle "in furtherance of an economic dispute with Mission." Later, Local 342 also picketed the premises of Gov-Mart North Gas Station. Thereupon Major instituted the State court action described above, "claiming that.... said gas station is completely separate and apart from the enterprise conducted by Mission Supply Co. • (a/k/a Gov-Mart) with which [the] union has a dispute" 129 NLRB No. 96. '