Lindsay Newspapers, Inc.

'478 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD 'Lindsay Newspapers;, Inc. and Sarasota Printing Pressmen, & Assistants Union;' Local 565, subordi- nate to the International Printing Pressmen & Assistants Union of North America, }AFL-CIO. Case 12-RC-3638 August 3, 1971 DECISION, AND DIRECTION BY MEMBERS FANNING, BROWN, AND KENNEDY On July 21, 1970, the Sarasota Printing'Pressmen & Assistants Union, Local 565, subordinate tot the International -Printing 'Pressmen & Assistants Union of North America, AFL-CIO, hereinafter'called the Union,' filed ";,a petition under Section 9(c)(1) of the National Labor Relations Act, as amended, seeking an election in a unit of "all paperhandlers, metal tenders; porters, and maintenance employees, em- ployed, at the, Sarasota Herald Tribune,"- which is owned and operated' by Lindsay. Newspapers, Inc:, hereinafter= called the Employer. On. August 1.3, 1970,1 a hearing was held before Hearing Officer Robert,L. Lochner.2 On September 8, the Regional Director for Region 12 issued a Decision and Direction of Election in a unit of "ail maintenance 'employees and paperhandlers."3 Thereafter, ` the Employer filed a Request for Review, a supporting brief, and a motion to reopen the record to adduce additional relevant evidence. On October, 6, the National Labor Relations Board denied the Employer's Request for Review. The Employer filed 'a motion for reconsideration dated October 7, which 'was not received by the Board until October -9. In its motion, the E1'oyer -contended that the Hearing Officer refuse to permit it to introduce testimony showing that the Union's reason for including paperhandlers in a unit with-mainte- nance employees is , racially motivated; that 1' th'e Regional Director refused to consider its offer of proof that throughout the newspaper indust y paper- handlers are ^ represented by the Union either In a separate unit of paperhandlers or in ,a unit composed of pressmen and paperhandlers ; and that the paper- handlers lacked`a, sufficient community of interest to warrant inclusion of them in a unit with maintenance employees. An election by' secret ballot was conducted in the 1 All dates hereinafter are in 1970 unless otherwise stated. 2 At the hearing the petition was amended to exclude metal tenders and porters as the Employer employs no such categories of employees. 8 On September 9, the Regional Director administratively dismissed the Employer's petition for unit clarification , filed under Section 9(c) of the Act, in which the Employer sought to have the paperhandlers added to an existing bargaining unit represented by the Union , which included the above-entitled proceeding on October 8: The ballots were impounded at the -,time' of election pending Board consideration of the, Employer's motion-for reconsideration. On October,22, the -Board, granted the- Employer's ; motion , , for reconsideration and directed the Regional-Director-to `reopen the record and conduct a hearing on the issues raised by the motion. Thereafter, a'hearingswas held, on November 16, before Hearing Officer Robert G. Romano, After the case was transferred-to=the-Board on November 18, the Employer filed a brief. Pursuant to the provisions of-Section '3(b) ,of ;the National, Labor Relations Act,, as, amended,.;^the National Labor Relations,, Board„ has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulin made, at the hearing and, finds that they are free from prejudicial error. Theyvare hereby affirmed. Upon the entire record in this case, the-Boardfinds: 1. ` The `Employer is engaged in commerce withiii the meaning of the Act and it will jeffectuate"il e purposes of the Act to ;assert jurisdiction herein. 2. The labor organization .involved claims to represent certain employees of the Employer.,,, P, 3.,,^A question-affecting-commerce exists concern- ing 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., 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, maintenance employees and paperhandlers employed by Employer at its Sarasota, Florida, location; but excluding all other-employees,-office clerical and professional ,'employees,-,guards, and supervisors-as define_din the Act. The Board has considered the Regional' Director's Decision and Direction of Election,„ ,the {xnployer's Request for Review and, supporting. brief, the,Em- ployer's motion for reconsideration, the, Employer's brief;, and the entire recor=d:in the case, and hereby affirms the Regional Director's'finding thata unit of ,the Employer's maintenance, employees and paper- handlers-is, appropriate for the purposes of collective bargaining. Employer's journeymen and apprentice press operators. The Regional Director based his dismissal on the fact that the issue raised by the unit clarification petition had already been ruled upon in his Decision and Direction of Election in Case l2-RC-3638 and the Employer had not brought forth any new evidence which was not previously available in Case 12-RC-3638. No appeal was taken by the Employer from this dismissal. 192 NLRB No. 61 LINDSAY NEWSPAPERS, INC. 479 1. ALLEGED--RACIAL MOTIVATION on the- scale committee that these men were thought The Employer is engaged-in the daily publication of a morning and an evening newspaper. The Union has been the certified collective bargaining representative for the Employer's, pressmen since 1955.4 The last contract, between the, Union and the Employer defines the unit as "thepress-stereo department" operated by the publisher, and under this contract the Union's jurisdiction extends over "all rotary printing presses employed in said pressrooms, including, but not limited to gravure, off-set and letterpress printing presses and associated devices." The contract was signed on October 18, 1968, for a 3-year term and contains an annual wage ,and hour reopener clause. There is no bargaining history for the maintenance or paperhandler personnel -Their wages are set by the Employer. The wages of the paperhandlers were not brought up in the most recent wage negotiations held for, the existing unit in 1969, Donald L. Evans, the Employer's business manager and treasurer, testified that. on two occasions, subse- quent to the filing of the petition herein, the Employer offered to include the paperhandlers as part of the pressmen's unit. Ii' did so, -according to Evans, because it felt that the paperhandlers have a conunu- nity of interest with the pressmen and none with the maintenance employees, and also because it believed there would be'anatural or desirable progression from paperhandler to pressman -apprentice. Evans stated that the Employer has always viewed the paperhan- dlers as being within the press-stereo department represented already by the Union, but explained that the Einployerhad excluded them from the sweep of its collective-bargaining agreement with the Union by an "administrative failure" or "oversight. " Evans- first testified that the, Union rejected the Employer's offer to include the paperhandlers in the pressmen's unit on the' ground that _"it was inappropriate." At another point, Evans said the Union stated that- the inclusion of, the paperhandlers in the pressmen's unit was inappropriate because the^skills of the paperhandlers were not comparable to the skills of the pressmen. At yet another point, Evans said he could not recall the Union's `specific, answer to the Employer's offer to include the paperhandlers-in-the existing pressmen's unit other, than the fact that it, deemed it inappropri- ate. When asked- specifically why the Employer has suggested that the Union is, discriminating or has discriminated insome way based upon race, Evans replied as follows: "I have considered the arguments of the press room employees or their representatives 4 Lindsay Newspapers, Inc., d/b/a Sarasota Herald Tribune and Journal, 111 NLRB 654. S Evans , said that the Employer did not think -that-the Union's argument that the paperhandlers' skills were not comparable to the pressmen's skills inappropriate to their unit as not being ;valid ... . And the only, reason that I can believe;,-for their rejection of these paperhandlers, is because of, their race."5 Evans later said that his thinkingmas -affected by his understanding. that the Union did notlave any apprentices or journeymen that were Black. - The undisputed facts show that of the, Employer's nine maintenance employees, about 50 percent are Black. The Employer presently employs two paper- handlers, both of whom, are-,Black. It had formerly employed one- other paperhandler, who also was Black.' The Employer has 21 journeymen, none, of whom are Black, and 6 apprentices, 2 of whom are Black. One Black apprentice was hired about, 6 months before the reopened bearing and the other was hired within about a month of, the -reopened hearing. The Black apprentice that, was .hired 6 months before became 'a member of the Union within 1 or 2 months of -his employment, which would,place his joining about 4 months before the reopened hearing. He was the only Black member of the Union at the time of the reopened hearing. The- Union has between 30 and 35 members. In the past 2 years-the Employer has changed over to apress:twice the size of the former one and therefore there -have been more pressmen and consequently more applications for union membership. There was testimony to the effect that it takes -a little time to process W a,- union membership application and that.the Union usually waited 1 week or 2 weeks before doing so to makesure an employee was going to continue his employment. - The. Employer normally -hires new applicants directly, -whether journeymen or apprentices. If it, is unable to find one itself it then goes to the Union. The Employer's present six apprentices were procured through advertisements and, upon applications to its personnel director. Evans said that the Employer has requested journeymen and apprentices from- the Union but has never asked for Black journeymen and apprentices. As mentioned before, Evans stated that no Black journeymen or apprentices were ever referred to the Employer from-the Union, but also stated that, the Union has never refused to send the Employer Black apprentices. Evans admitted that he bad never told the Union of the Employer's progression wish to enable the paperhandlers to become apprentice pressmen if they so desired. He also testified-that when the Employer hired its two Black apprentice pressmen the ,Union did nott oppose the hirings in, any way,,,and that there had been do difficulties occurring in the plant over the was a valid one as some of the journeymen that the Employer has working for it have varying degrees- of 'skill and some journeymen who were members of the Union were incompetent and had to be fired. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment of the two Black apprentices. Evans also said that n9.,-representative of the Union has ever made a statement' to him with respect to -race which would cause him to form the impression he had, that the, Uniori rejected these paperhandlers as part of .tiressting unit because of race. He also said he did 'rotkryow of, any policy on the part of the local union to-,eXclude.Blacks from its membership, except that to his knowledge they have not included any Blacks. At another point in his testimony Evans said the only knowledge he has of=the Union's policies stems from the fact that it has never referred Black journeymen or apprentices to the-Employer although, as he admitted, the Employer has never requested the Union to do-so. Delbert Lee Grover, the Union's president and a pressman for the Employer for 10 years, testified that the Union - has no policy which bars Black from membership or the benefits of collective bargaining, and that no one has ever been excluded from its membership because of his color: He also denied that race had anything to do with the Union's position of not wishing to include paperhandlers in the existing pressmen-unit. On these facts, we are unable to conclude that the evidence establishes that the reason advanced, by the Union for refusing to include the two paperhandlers in their existing unit of pressmen, namely that the paperhandler 'skills are not comparable to'pressmian skills, was pretextual and that the real reason was the Union's racial bias. While the fact that the Union'has only' one Black member and has never ' ref erred a Black journeyman or apprentice to the Employer may be regarded as a suspicious circumstance, the reason advanced by the Union for, not , "including the paperhandlers is in line with established Board policy, as reaffirmed hereinafter. In addition, the Employer admits that it never told the Union that it felt there was a "natural" or "desirable" progression from paperhandler, to pressman when it suggested that the Union include thepaperharidlers in their existing unit and heretofore there had been no'line of progression between the two classifications. Moreover, there was no evidence presented by any Black individual that he had been discriminated `against-by the Union andin fact the Employer admitted that when it hired its two Black ,"apprentices the Union, did not oppose" the hirings rn any fashion, nor have there been any problems in the plantconcerning their' employment. In addition, Evans conceded that none of the Union's representatives has ever made a statement to him that would have lent support to his impression that 'the Union is racially biased. Finally, although the matter is not relevant to the Union's alleged racial prejudice, the Employer's, position, does raise a question as to its own motivation. Thus, while the Employer claims that it had always considered the paperhandlers as being in the existing unit, it'admits that it-has excluded them from the collective-bargaining agreement it has with the Union, claiming_however that this ,was due- to an "administrative failure" or ,"oversight." Further, the Employer hired the six present apprentices, including the two Black ones, and,there is nothing in its contract with the Union to- prevent it - from- also- having advanced on its own the two present-paperhandlersto apprentice pressman status.` Ii. 'INDUSTRY ' PRACTICE The -Employer introduced 11 contracts that it obtained by request 'from the 1 ,000-member Ameri- can Newspaper Publishers Association to which `it belongs, in support `of its, contention that throughout the newspaper 'industry paperhandlers are represent ed by' the Union eitlieriseparately or with, pressmen, rather than in a unit with maintenance employees.At one point Evans stated that he had requested any contracts between any newspaper publishers and-the Union's International or any of;its locals covering the jurisdiction of paperhandlers: At another point in his testimony Evans said "that he requested contf `acts in wmcn me jurisarction inciuaea maintenance employ- ees or paperhandlers. At still anothe point, Evans testified that he asked them to, send him contracts wherein paperhandlers would beina_separate unit by themselves or in a, pressmen's o unit. ,Examination showed that initially one` such contract was sent pursuant to the ,fimt inquiry ofEvans;Thereafter, 10 additional contracts were obtained through the inquiry, of the Employer's attorney. 'Evans admitted that, he did not inquire of other newspapers in,his ,immediate area or in the State of. Florida except for one newspaper -in Tampawhere he learned paperhan- dlersare separately represented. . Of the 11 contracts introduced by the Employer, , 8 included paperhandlers in the, pressmen's unit., 1 contained a separate paperhandler ,unit, 1 contained just a pressmen's unit,,and the last- ,contained a porter's unit. The contracts are from they following geographic areas : Baltimore (2); San Diego., Honolu- lu;Nassau-County, N.Y.; Detroit; Reading, Pa.; Los Angeles;- Indianapolis; ,Knoxville,.Tenn.; and Van- couverryBritish Columbia.,ThePrecord shows that there are about, 1,500 publishers in the United, States. Glover, the Union''s witness , testified that through its locals it has 780 collective-bargaining agreements `in the newspaper industry although the nature of the units was notidentified. On the basis of these few contracts , we are unable to conclude `that newspaper industry practice :supports the l Employer's -contention that, the, paperhandlers should ' be included ' in a unif` with pressmen or LINDSAY NEWSPAPERS, INC. alternatively'should be represented in a separate unit by themselves. III. COMMUNITY OF INTEREST The undisputedfacts, as elicited from the Employ- er's witness, Evans, show -that at the time of the Board's 1955 certification of the Union as the representative of "all pressmen and their apprentices" in,the Employer's pressroom, the pressmen performed what limited paperhandling duties were then required - due to the =Employer's-smaller size of operation and the utilization of an old press. The rolls of newsprint were^manually rolled-from a dock on the same level as the' pressroom into the storage area. Thereafter,,about 1959, because the Employer moved to a new facility without a dock on the same level and because of an increased amount-of work; management determined that it would bebetterto hire a man and use special equipment; e.g., a forklift - truck, to - perform the paperhandling work. Paperhandlers hired in 1959 still, occupy- that-position., They are former maintenance employees who were hired- by, the building superin- tendent, who,is;themaintenance supervisor. -The paperhandlers work one, shift from 7 a.m. to 4:30 p.m.,- and-according to the Employer, the pressmen on. that shift work the same hours. The paperhandlers spend most of their_worktime in the press-stereo department, but do not-, operate the presses. They are the only employees working in the pressroom besides the pressmenand a machinist hired a, month =,before the reopened hearing.6 Their job basically is to run a forklift -truck to unload incoming trucks of newsprint rolls and then move the rolls ,first to a storage area, then to a lay-down area-and-finally to the pressroom. They also transfer newsprint rolls to the storage area by regular truck from the separately located warehouse which is about 4 or 5 miles from the printing plant. This operation may occur as frequently as every dayand at other times only occurs 2 to 3 ,,times a week. The paperhandlers remove the outside side wrappers from the-rolls, note-the number, of the roll, and transmit this number to the accounting department.' Before the, paperhandlers leave for the day they put in rolls of newsprint in the presses for the morning newspaper. However, if more rolls are needed or different size rolls are required, the night pressmen take them down. The paperhandlers are daily required to clean the press floorboards and portable ink fountains on the press, and to sweep floors, remove combustible materials around the equipment, and collect all of the waste metal and remelt it. In addition, they lay down papers and drip 6 Evans first stated the machinist was part of the press -stereo unit but that he was not covered by any collective -bargaining agreement that the 481 pans. From time to time they clean the presses but this, is also the duty of the pressmen. In his absence, the paperhandler's function has been performed by a cooperative effort between a mainte- nance employee who can operate the forklift truck and the pressmen. The paperhandlers do not work at night because- there is not enough work to justify another full paperhandling shift. Evans stated that he has observed pressmen at night moving newsprint as do the paperhandlers, and thatpressmen occasionally perform this function on weekends. On occasion a paperhandler may fill in for a maintenance employee. The paperhandlers' duties are confined to the ware- house, storage and lay-down areas, pressroom and stereotype room, The pressmen, who apparently work more than one shift, operate the presses and do their own minor maintenance, e.g., oiling and greasing. They also clean the presses. As mentioned above, they fill in for the paperhandlers, when the latter are,absent, in cooperation with the maintenance men. Their prima- ry duty is at the presses and they would not be taken off a press to handle paper. The maintenance people work three shifts. The first shift is from 7:30 a.m. to 4 p.m., the second from 4 p.m. to midnight, and the third from midnight to 8:30 a.m. There are seven employees on the first, one on the second, and one or two on the third. The maintenance, employees clean the composing room daily. They pick up used metal in the composing room, remelt it, and pour it into molds which are then transported back to the composing room; and they deliver hot ingots by handcar to the stereotype room. They also clean light bulbs, empty wastebaskets, and bale wastepaper. They truck wastepaper to the,dump and pick up mail from the post office and -deliver outgoing mail there. In addition, they pick up news copy, advertising copy, and interdepartmental corre- spondence from the newspaper's Bradenton office, presumably for delivery to the Sarasota plant. The maintenance employees do no maintenance work in the press-stereo department. They replace supplies in the restrooms and paint and repair=ding. They also keep the grounds free of wastepaper and miscellaneous debris. One, maintenance employee is a maid who cleans and vacuums the executive offices. However, the Employer, has a cleaning -service that cleans the floors and desktops and washes windows. As mentioned previously, they, along with the pressmen, occasionally operate a forklift truck to transport newsprint in the absence of a paperhandler. The supervisory)hierarchy is as follows: There is a general manager at the newspaper to whom department heads report. Under him, among Employer currently has with any union. He then stated that he thought the machinist is within the bargaining unit. 482'" DECISIONS OF NATIONAL LABOR RELATIONS BOARD others, are a building superintendent, who supervises the maintenance employees, and a press-stereo superintendent, who ' supervises the pressmen. Be- neath the'press-stereo superintendent are two press foremen; ' a night- foreman, and a day ^ foreman. The paperhandlers are directly supervised by the day press foreman. However, they are carried by the Employer on its building department payroll. As do all hourly employees; the paperhandlers keep their own time- cards, but like maintenance employees they turn them in for `approval- to the building superintendent.7 On rare occasions when the paperhandlers have nothing to do' and the building superintendent needs assist- ance, they will be directly supervised by-the building superintendent. Since the men who occupy the paperholder positions are the original occupants of the'°paperliandler job and came out of the mainte- nance group, ` - they 'were originally hired by the bding`superintendent. The-pressroom superintend- ent` never, supervises'the maintenance employees nor does thee--'building superintendent ever, supervise pressmen. While none of the paperhandlers has ever become ill on the job, Evans said he assumed an ill paperhan"dler would notify both the building and press-stereo superintendents. The paperhandlers earn $2.20 an hour. The mainte- nance employees make 10 to 20 cents -less an hour except = for one maintenance employee who was described as a "gang chief" and,who makes $2.35. Journeymen pressmen make $3.94 an hour and apprentice pressmen"start at 60 per cent off scale, about $2.36. Every 6 months the 'apprentice wage increases'5 per cent. It takes 4 years to become'a journeyman pressman and i` nontli 'to becbme a paperhandler. However, Evans stated that in the past 2 yearspossibly four apprentices' -'became journeymen after 3-1/2 years withthe approval of'Petitioner. 111`` employees of th=e Employer use common facilities;' such as"restrooms and cafeterias. In addi- tion,'a"Yl'employees receive the ,same fringe benefits, such, as vacations. Paperhandlers and maintenance employees wear blue' uniforms and pressmen wear green ones. Based on the"entire record, we are persuaded that I Evans indicated this may be changed m the future. the community of interest that the paperhandlers share with the maintenance employees is broader than any community of interest they might enjoy with the pressmen, and that accordingly , a _ single unit of paperhandlers and maintenance employees is an appropriate one. This is so,by reason of the fact that the pressmen are undoubtedly a distinct and homoge- neous group ,of skilled craftsmen while the paperhan- dlers possess no craft skills nor any appreciable skills other than their- ability to drive a forklift truck, which can be learned in, l month; the, paperhandlers have been excluded from the long existing pressmen-craft unit represented by the Union since the classification of paperhandler was created in 1959 ; the :work functions of- the paperhandlers are substantially different from those-of the pressmen;, the paperhan- dlers do perform maintenance tasks in the pressroom and on occasion may fill - in for a. maintenance employee; the paperhandlers were, recruited from the maintenance ranks and there-is no line of progression from paperhandler classification to pressman ,classifi- cation ; the paperhandlers earn substantially , less per hour than pressmen and only a little more per hour than the maintenance employees; and-the paperhan- dlers are carried by the Employer on, itspayroll for the building department, which is., the maintenance department, and, like the maintenance employees, turn in their timecards for approval to thelbuilding department superintendent, who supervises:the.main tenance employees. Accordingly, we shall direct that the Regional Director for Region 12' shall open and count the ballots,' prepare- and) cause, to be served upon the parties a tally oP ballots, and -thereafter issue the appropriate certification. DIRECTION It is hereby directed that the'Regional Director for` Region 12 shall; pursuant to" the Rules and Regula- tions of the Board, within 10 days from the date of this Direction, open and count `the ballots, prepare and caus'e' to be served upontheparties a tally of, ballots, and thereafterissue the appropriate, CertificatiOin.