The Tribune Co.

398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Tribune Company and Lithographers and Photo- engravers International Union, Local 220, AFL- CIO, Petitioner . Case 12-RC-3635 May 19, 1971 DECISION AND DIRECTION BY CHAIRMAN MILLER AND MEMBERS FANNING, BROWN, AND KENNEDY Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and approved by the Regional Director for Region 12 on August 7, 1970, an election by secret ballot was conducted in the above-entitled proceeding on September 10, 1970. Upon the conclusion of the election a tally of ballots was furnished the parties in accordance with the Na- tional Labor Relations Board Rules and Regulations, Series 8, as amended. The tally of ballots shows that of approximately nine eleigible voters, eight cast ballots, of which four were for, and two were against, the Peti- tioner, and two were challenged. The challenged ballots were sufficient in number to affect the outcome of the election. Thereafter, the Employer filed timely objec- tions to conduct affecting the results of the election. In accordance with the Board's Rules and Regula- tions, the Regional Director conducted an investigation and thereafter, on October 23, 1970, issued his Report on Challenged Ballots and Objections to Election, at- tached hereto. In his report, the Regional Director recommended that one of the challenges be sustained, but made no recommendation regarding the remaining challenge in view of the fact that his recommendation with respect to the other challenge would be determina- tive of the election. The Regional Director also recom- mended that the Employer's objections be overruled and the Petitioner certified. Thereafter, the Employer filed timely exceptions to these recommendations. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent employees of the Employer. 3. A question affecting commerce exists concerning the representation of the employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. In accordance with the stipulation of the parties, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All editorial artists employed by Employer at its newspaper plant at Tampa, Florida, excluding all other employees, including those within existing 190 NLRB No. 65 bargaining units, office clerical employees, guards and supervisors as defined in the Act. The Board has considered the Regional Director's report and the Employer's exceptions thereto, and hereby adopts the Regional Director's recommenda- tions only to the extent consistent herewith. Contrary to the Regional Director, and on the basis of the parties' expressed intent, we overrule the chal- lenge to the ballot cast by E. Lamar Sparkman. Our dissenting colleague rejects what he views as "specula- tion" as to the parties' intent, finding rather that the Act gives the Board exclusive responsibility to deter- mine the appropriateness of the unit and, in so doing, to pass on the eligibility of employees to vote in an election. He questions whether the function of the Board should be different in stipulated unit cases from that which prevails in other cases where the Board initially determines the appropriate unit. We think, in common with the reviewing courts, that the Board's function should be different. Parties that come before the Board have a special interest in secur- ing the speedy resolution of questions concerning rep- resentation.'To this end, we permit parties to stipulate to the appropriateness of the unit, and to various inclu- sions and exclusions, so long as (a) their agreement is approved by the Regional Director, and (b) their agree- ment does not violate any express statutory provisions or established Board policies. Were we later to review their stipulation de novo, and make our own findings,. we would be undercutting the very agreement which served as the basis for conducting the election. The view of our dissenting colleague has been specifically rejected by reviewing courts. In one case,' the Court of Appeals for the Second Circuit said, with respect to the Board's exclusion of an employee on the basis of "com- munity of interest": In our view no established Board policy or goal of the Act is contravened by including [the em- ployee]. We view community of interest as a doc- trine useful in drawing the borders of an appropri- ate bargaining unit, a function well within the discretion of the Board. But we do not conclude that the doctrine remains as an established Board policy sufficient to override the parties' intent when the Board, in the interests of furthering con- sent elections, allows the parties to fix the unit. Other courts have said essentially the same thing.' In stipulated unit cases, the Board's function is to ascer- tain the parties' intent with regard to the disputed em- ployee and then to determine whether such intent is See, e g , Amalgamated Clothing Workers of America, AFL-CIO v NLRB. (Sagamore Shirt Co), 365 F 2d 898, 902, 905 (C A.D C) Tidewater Oil Co v N.L R B, 358 F 2d 363, 366 NLRB v J. J. Collins Sons, 332 F 2d 523 (C A 7), NLRB v The Joclin Manufacturing Co., 314 F 2d 627 (C A 2) THE TRIBUNE COMPANY 399 inconsistent with any statutory provision or established Board policy. Applying this twofold test to the instant case, in the absence of any evidence to the contrary , we must con- clude that the parties intended to include Sparkman if he is an editorial artist at Tampa , Florida. The Re- gional Director's investigation disclosed that he is, without dispute, a regular part-time editorial artist who works a total of 18 to 24 hours a week , 40 percent of which, or about 7 to 10 hours , is spent in the plant at Tampa, Florida. There is nothing in the stipulation indicating he was meant to be excluded because he performs 60 percent of his work at home, nor is he by virtue of any other fact within any of the classifications specifically excluded by the parties. In addition, we find that Sparkman is employed at Tampa , Florida, as he is carried on the Employer's Tampa plant payroll, was hired, and is assigned to his jobs by the Tampa sports editor or managing editor , is under the same immediate supervision as all the full-time Tampa plant editorial artists, and spends a substantial amount of his working time at the Tampa plant . We therefore find the parties intended to include Sparkman in the stipulated unit. We also find that the inclusion of Sparkman within the stipulated unit does not violate any statutory provision or settled Board policy . Accordingly, we shall direct that the Regional Director for Region 12 shall open and count Sparkman's ballot, and, if thereafter the challenged ballot cast by Ted E. Starr becomes deter- minative, the Regional Director shall take such action as he deems proper and necessary to resolve the re- maining issue with respect to Starr. DIRECTION It is hereby directed that the Regional Director for Region 12 shall, pursuant to the Rules and Regulations of the Board , within 10 days from the date of this Direction, open and count the ballot of E. Lamar Sparkman, and, if thereafter the challenged ballot cast by Ted E. Starr becomes determinative , that challenge should be resolved by the Regional Director. MEMBER FANNING, concurring: I concur in the result reached by my colleagues, Chairman Miller and Member Kennedy , finding Sparkman eligible to vote , thus overruling the Peti- tioner's challenge to his ballot . My view stems from the fact that Sparkman is employed as an "editorial artist" and regularly reports to the newspaper office for work even though part of his work is done at home . In addi- tion, except where specific work has been assigned to Sparkman by the sports editor, he is supervised by the managing editor who also supervises the editorial art- ists who work full time in the plant . In the circum- stances I view the employment status and interests of Sparkman as essentially the same as those of the car- toonists or "editorial artists" who constitute the stipu- lated unit.' MEMBER BROWN, dissenting in part: Contrary to my colleagues I would exclude E. Lamar Sparkman from the unit . Chairman Miller and Mem- ber Kennedy have said that they apply a twofold test in dealing with a stipulation : first, what is the intent of the parties, and second, is that intent contrary to any statutory provision or established Board policy. To say that we first determine intent means that we are admit- ting at the outset that the stipulation is not clear. As a general proposition, when an agreement is clear, it is not necessary to resort to extrinsic evidence to deter- mine what it means. But. having said that, my two colleagues do not point to any extrinsic evidence. They say simply that because there is no evidence to the contrary, they must presume an intent to include Sparkman , on the specious ground that all editorial artists are the same , whatever the terms and conditions of their employment . This approach will require the parties to a consent election, if they are to avoid any problems, to discuss and agree on the eligibility of each and every employee in the unit, scarcely a course which would further the congressional policy to have repre- sentation cases expedited. To my mind, the only valid extraneous evidence that was presented concerning intent was the Regional Director's finding that before the election the Union indicated that Sparkman was not eligible . From that, even applying my two colleagues ' test, I would find it impossible to reach the result they do. Rather, the parties' intent being at least as unclear as the stipulation, and the parties having agreed in the stipulation that the election "shall be held in accord- ance with the National Labor Relations Act, the Board's Rules and Regulations , and the applicable procedures and policies of the Board," I would decide Sparkman 's unit placement in accord with the Board's usual principles . Our established policy has always been to predicate such determination on common inter- ests-interests which we have traditionally called "community of interest"-but a determination which, in essence, takes every factor bearing on an employee's employment into consideration . My two colleagues do ' See Joseph R Osherenko, 73 NLRB 670, wherein the Board overruled the challenge to the ballot of a feature writer , made on the ground that her "status" differed from that of other employees in the appropriate unit, finding that her work was comparable to that of other feature writers in- cluded in the editorial department unit although she did most of her writing at home, that she had specific assignments due at specified times , and that she worked under the same supervision as unit employees , cf Times Herald Printing Company, 126 NLRB 600, where certain business , food, and stu- dent correspondents working primarily without assignment and often sub- mitting stories by mail or phone were excluded from a unit of news and editorial department employees See also Quality Markets, Inc, 160 NLRB 44, fn 3 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not question the fact that such would have been the course followed if the unit question had initially come to the Board and the appropriateness of Sparkman's inclusion or exclusion was to be determined, but they ignore the fact that the Board's reliance on Community of interest in the resolution of representation issues is, as they must acknowledge, established Board policy,' and that, as noted, stipulations are entered into subject to the understanding that Board policy will prevail. The Board would not have said that Sparkman is eligi- ble simply because he does some editorial work without taking into consideration all the other facts relating to Sparkman's employment. There is absolutely no good reason and none is offered why that policy should not prevail in stipulated unit elections. The new approach advocated by Chairman Miller and Member Kennedy is a patent abdication of the Board's responsibility, which Congress intended to be exclusive, to determine the appropriateness of the unit when an issue is raised as it is here. Instead, in a clear reversal of Board policy, they decide a question of eligi- bility not on the established ground that employees enjoy common conditions of employment, but rather on speculation as to the parties' intent in the face of clear evidence that such intent was in fact disputed.' Contrary to Member Fanning, I agree with the Re- gional Director's conclusion that the interests and con- ditions of employment of Sparkman are different from those of the other editorial artists working full time in the plant and would therefore affirm his conclusion that Sparkman should be excluded. Accordingly, I would certify the Petitioner. ' I note that in the recent case of North Arkansas Electric Cooperative, Inc, 185 NLRB No 83, Chairman Miller joined me in stating that "[Iln representation cases `community of interest ' is the principal determinant" for inclusion in a proposed unit ' American Printers & Lithographers, Inc., 174 NLRB No 177, Mitch- iyoshi Uyeda, d/b/a Udaco Manufacturing Company, 164 NLRB 700 1 assume that Chairman Miller and Member Kennedy by looking to the three cited court opinions are not abandoning the Board's well-established policy of not adhering to views of circuit court of appeals which are contrary to our own until the Supreme Court has determined the issue The wisdom of this policy, which is premised on the fact that the Board has been charged by Congress with administering the Act on a uniform national basis, is well illustrated by this case, as other courts of appeal have expressed differing views as to the Board 's responsibility to determine eligibility in stipulated unit elections, e g , Shoreline Enterprises ofAmerica, Inc v NL.R B, 262 F 2d 933 (CA 5)