Lowell Sun Publishing Co.

1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lowell Sun Publishing Company 1 and Newspaper Guild of Greater Boston, Local 32, American Newspaper Guild, AFL- CIO, Petitioner. Case No. 1-RC-6326. August 23, 1961 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Robert L. Rosemere, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Leedom and Brown]. 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 organization involved claims to represent certain em- ployees 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? The Employer is engaged in publishing a daily newspaper in Lowell, Massachusetts. Its nonmechanical operations are divided into editorial, advertising, circulation, business, and maintenance depart- ments.' The Petitioner seeks a unit comprising, with the usual ex- clusions, all employees in the Employer's advertising, editorial, and business departments, and certain clerks employed in the circulation department. Alternately, the Petitioner would include in the unit, in addition, maintenance department employees 4 and district man- agers employed in the circulation department. The Petitioner does not, however, wish to represent mailing employees and drivers em- ployed in the circulation department, and, in the event that the Board finds that such employees must be included in the unit, the Petitioner 'The name of the Employer appears as amended at the hearing. 2 At the hearing, the Employer moved to dismiss the petition on the ground that no question concerning representation exists because the Petitioner , at no time prior to the filing of the petition, made a request for recognition as the bargaining representative of the employees in the requested unit. The hearing officer referred this motion to the Board. As the Board has held that the filing of the petition constitutes a sufficient demand for recognition to create a question concerning representation and as the Employer, at the hearing, refused to recognize the Petitioner as bargaining representative of its employees, we find that the Employer' s motion is without merit and it is hereby denied . United States Plywood Corporation and Kahstxon , Inc, 112 NLRB 1471, 1473 eCollective-bargaining agreements are presently in effect between the Employer and various labor organizations other than the one involved herein covering employees in the Employer's mechanical departments. There has been no collective-bargaining history within the last 20 years with respect to the employees in the Employer's nonmechanical departments. 'The record indicates that the maintenance department consists of a superintendent and assistant superintendent of maintenance , elevator operators , and charwomen. 132 NLRB No. 103. LOWELL SUN PUBLISHING COMPANY 1169 requested separate units of business, editorial, and advertising de- partment employees, with circulation clerks included in the business department unit. The Employer moved to dismiss the petition on the ground that it fails to set forth an appropriate unit. The hearing officer referred the motion to the Board. The Employer contends that separate units of advertising, business, and editorial department em- ployees, excluding circulation clerks, are the appropriate units. The Board has characterized as the optimum appropriate unit in the newspaper industry a unit comprising employees in all nonme- chanical departments I and has found that a combined multidepart- ment unit which does not include all nonmechanical employees may be inappropriate.' Here, the Petitioner seeks a combined unit of non- mechanical employees excluding, however, maintenance employees.7 As the unit sought does not embrace all nonmechanical employees, we find such unit inappropriate.8 However, as the alternate unit sought by the Petitioner, which includes maintenance employees, com- prises, with the exceptions of certain outside circulation department employees, discussed below, all nonmechanical employees of the Employer, we find such unit appropriate.' The parties disagree as to the placement of certain circulation de- partment employees. As noted, the Petitioner would include and the 5 The Salt Lake Tribune Publishing Company, at al, 92 NLRB 1411, 1412-1413; The Chicago Daily News, Inc., 98 NLRB 1235, 1237 ; The Peoria Journal Star, Inc, 117 NLRB 708, footnote 1; Chicago North Side Newspapers, 124 NLRB 254. 6 The Peoria Journal Star, Inc., supra, at p. 709. T The placement of circulation department employees is discussed infra 8 We find distinguishable those cases in which the Board found that combined units of nonmechanical employees appropriate even though all nonmechanical employees were not included in the unit. In Dayton Newspapers, Inc, 119 NLRB 566, the Board approved a unit of advertising and billing department employees on the ground that employees in those departments "performed coordinated work and are functionally integrated" while there was no evidence of similar integration of coordination between the advertising and billing department employees and employees in other nonmechanical departments. In the instant case, however, while the record shows that, in certain relatively minor respects, there is an overlap in the work of the employees in the editorial, advertising, and business departments, it is clear, and we find, that these departments are not sufficiently integrated to establish them as an appropriate unit separate from other nonmechanical departments. In Philadelphia Daily News, Inc., 113 NLRB 91, the Board approved a combined unit of editorial, promotion , and art department employees , but excluding such nonmechanical employees as advertising, accounting, circulation , and maintenance department employees. However, there, the Board relied particularly on the fact that no union sought to repre- sent nonmechanical employees on a broader basis Here, however, since the Petitioner is also willing to represent, as an alternative to the requested unit, a unit including other nonmechanical employees, we find that the narrower unit is inappropriate. 8 The Employer's motion to dismiss the petition on the ground that the unit sought is inappropriate is therefore denied. While the Employer contends that separate units of editorial, advertising, and business department employees are appropriate , and the Board has found separate departmental units appropriate in the newspaper industry ( e g, The Peoria Journal Star, Inc, supra ), since the Petitioner seeks the optimum overall non- mechanical unit, we find such unit more appropriate than separate departmental units. See Home News Publishing Co., 109 NLRB 833. The record indicates that proofroom employees are part of the editorial department and we shall therefore include them in the unit. The Petitioner also indicated that it wished to represent certain clerical employees working for the Employer's executive employees . As the unit found appropriate is an overall unit of nonmechanical employees, we shall include these clerical employees in the unit. 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer would exclude circulation clerks from the unit. The Peti- tioner would exclude district managers from the unit but would in- clude them if the Board finds that necessary in order to constitute an appropriate unit. The Petitioner in no event wishes to represent mailing employees or drivers. While the Board ordinarily includes circulation department employees in units with other nonmechanical employees, it has recognized that outside circulation department em- ployees who work away from the plant, who have little or no physical contact with other employees and whose work differs from that of other employees, are excludable from units otherwise composed of all nonmechanical employees.10 The record here indicates that, of the six circulation clerks sought by the Petitioner, two work on the first floor of the Employer's newspaper building and are engaged in per- forming clerical service for the circulation manager and assistant circulation manager, including the preparation of documents relating to the delivery of newspapers to carriers and dealers. The remaining four circulation clerks work on the second floor and are engaged in accounting work relating to the billing of dealers, subscribers and others, checking circulation income and expenses, and offering counter service for the sale of the newspaper. We find that the interests of the circulation clerks are closely related to those of inside non- mechanical employees and we shall therefore include them in the unit.l1 Each district manager is assigned to a particular geographical area, where he is responsible for the sale and distribution of the news- paper, and collections. The district manager spends a "good propor- tion of the time" in his district, soliciting new subscriptions, making certain that deliveries are properly made, and performing related functions. The record also indicates that the district managers come into contact with the drivers. We find that district managers are out- side circulation employees and we shall exclude them from the unit." The drivers are primarily responsible for the picking up of Em- ployer's trucks at a garage located away from the plant, driving to the plant, picking up the newspapers and delivering them to the vari- ous dealers. These drivers, on occasion, also do mailing work. We find that the drivers are outside employees and should be excluded from the unit.l9 10 The Chicago Daily News Inc, supra , at p 1237. See The Niagara Falls Gazette Publishing Company, 111 NLRB 264; Denver Publishing Company, 117 NLRB 1465 11 See The Dispatch Printing Company, Incorporated, et al ., 93 NLRB 1282, 1286; The Peoria Journal Star, Inc., supra, at p. 702 In these cases , the Board found that the interests of circulation department clerks were related to those of other clerical employees rather than to the interest of outside employees who were excluded from the unit. 12 The Chicago Daily News, Inc., supra, at p 1238, footnote 8. 12 Denver Publishing Company, supra while the record also indicates that advertising solicitors spend considerable time away from the plant, we find that, because of the nature of their work, their interests are related to those of inside nonmechanical em- LOWELL SUN PUBLISHING COMPANY 1171 The Employer also employs several truck maintenance employees who are responsible for the mechanical servicing of the` trucks. Since the function of these employees is closely related to that of the drivers, we shall exclude them from the unit. As the record does not indicate the duties of the individual who is employed as a full-time mailer, we are unable at this time to decide whether his interests are more closely related to those of the inside nonmechanical employees or to outside circulation department em- ployees. We shall, therefore, allow him to vote subject to challenge. The parties also disagree as to the supervisory status of the follow- ing individuals: Leon Irvin, photographer; Ann Donaghue, women's page editor; G. Francis Sargent, sports editor; Robert N. Bates, classi- fied advertising manager; Victor Romaneckes, retail advertising man- ager; and John E. Kearns, cashier and circulation office manager.14 Contrary to the Petitioner, the Employer contends that each of these individuals is not a supervisor and should be included in the unit. Irvin is one of six photographers working in the editorial depart- ment, which is under the supervision of the editor, the managing editor and the news editor. All but one of these photographers receive a higher salary than Irvin. Irvin is responsible for maintaining a record of the supply of film and of the stock of paper. He does no purchasing on his own, however, and stock requisitions are made through the managing editor. Irvin also makes certain that more than one photographer does not cover the same event while another event remains uncovered and, in consulation with other photog- raphers, determines photographer's assignments. We find that Irvin exercises only routine responsibilities and we shall therefore include him in the unit. Kearns, the cashier and circulation office manager, works under the direction of the circulation manager. Kearns is engaged primarily in "circulation" bookkeeping, working together with three circulation clerks on the second floor of the newspaper plant. Kearns testified that the circulation manager directs these clerks. However, if Kearns discovers errors in their work, he corrects them. When asked by the circulation manager, Kearns expresses an opinion on the work of the circulation clerks. If one of the clerks is sick, he calls the circulation manager, who transmits the message to Kearns. Similarly, if a clerk wishes to leave early, he asks permission from the circulation manager. ployees and we shall include them in the overall nonmechanical unit . The Chicago Daily News, Inc, supra, at p. 1237, footnote 6. 14 The parties stipulated that the following individuals are not supervisors and should be included in the unit : wire editor (McCollister) ; copy reader ( Moran ) ; national advertising manager (Smith) ; and assistant office manager (McLaughlin). We include them in the unit. The parties further stipulated that the secretary to the general man- ager (Visockas ) is a confidential employee and should be excluded from the unit. We exclude her from the unit. The parties also stipulated that "stringers," who cover sports events on an ad hoc basis, are not employees of the Employer and are not eligible to vote. 614913-62-vol. 132-75 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kearns is responsible for making certain that the office is "in order" and-that the doors are open in the morning and closed at night. As the evidence does not establish that he is,a supervisor, we shall include him in the unit. With respect to Donaghue, the women's-page editor, Sargent, the sports editor, Bates, the classified, advertising manager, and Roman- eckes, the retail advertising manager, as the-record is inadequate to en- able us to determine their supervisory status, we-shall allow them to vote subject to challenge. We find the following employees of the Employer constitute a unit appropriate for the- purposes of collective bargaining : All employees in the advertising, business, editorial, and maintenance departments, and the clerks' in the circulation department including the photog- raphers, the cashier, and circulating officer manager, the wire editor, the copyreader, the national advertising manager, and the assistant office -manager, but excluding •district managers, drivers, truck main- tenance employees, the secretary to the general manager, and all super- visors as defined in the Act. . - [Text of Direction of Election omitted from publication.]" Fruit & Vegetable Packers & Warehousemen, -Local 760, and Joint Council No. 28 of ' the International Brotherhood of Teamsters, • Chauffeurs, Warehousemen and Helpers of America and Tree ' Fruits' Labor Relations Committee, Inc. Case No. 19-CC-155. August 4,.1961 DECISION AND ORDER Upon unfair labor practice charges filed on January 9, 1961, as amended on February 6,•196'1, by Tree Fruits Labor Relations Com- mittee, Inc., herein called Tree Fruits, against Respondents, Fruit & Vegetable Packers & Warehousemen, Local 760, and Joint Council No. 28 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein respectively called Local 760 and Joint Council No. 28, the General Counsel of the National Labor- Relations Board by the Regional Director for the Nineteenth Region•issued an. amended complaint alleging that Re- spondents had engaged in and were engaging in unfair labor practices- within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act. Copies of the complaint, -charges, and notice' of hearing were served upon the Respondents and: the Charging Party. With respect to the unfair labor practices, the complaint alleged that by picketing at the premises of retail stores of Safeway Stores, Inc., 132.NLRB No. 102.