The Suburban Newspaper Group--Moorestown News, Inc.

438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Suburban Newspaper Group-Moorestown News, Inc. and Lithographers and Photoengravers Interna- tional Union, Local 14L, AFL-CIO-CLC,' Peti- tioner. Case 4-RC-9228 February 16, 1972 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Gordon L. Fine. After the hearing and pursuant to Section 102.67 of the Na- tional Labor Relations Board Rules and Regulations, Series 8, as amended, and by direction of the Regional Director for Region 4, this proceeding was transferred to the Board for decision. Thereafter, the Employer and the Petitioner filed briefs in support of their respec- tive positions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, 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 labor organization involved claims to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner seeks an election in a unit of all production and maintenance employees, excluding all compositors; lithographic production employees, office clerical, editorial, and advertising sales employees; watchmen; guards; and supervisors as defined by the Act. There is no history of collective bargaining in the unit. The Employer is a New Jersey corporation engaged in printing and publishing 10 weekly newspapers as well as providing printing services for other publica- tions. The proposed unit is in the circulation depart- ment and includes three full-time employees and a number of part-time employees. A general manager, Recchino, is in charge of the operation of the plant, and the circulation manager, Maul, his immediate subordi- nate, supervises the employees in the requested unit. The full-time employees-Jones, Merkh, and Ballan- tyne-are respectively described by the Employer as assistant circulation manager and district supervisors, and, as a group, are referred to as district managers. The district managers, in addition to other duties, over- see the delivery of the Employer's papers. They hire carriers, replace them, explain their routes and how and when to serve the papers, supply them with equip- ment, provide work permits, bill them, determine whether a carrier is to receive a bonus, etc. Addition- ally they take papers off the press and stack them, pick up rental trucks, deliver papers to carriers, stuff inserts into papers, pick up boxes for use as trash receptacles, help move cabinets, sweep the floor, perform certain functions with relation to the part-time employees, and a miscellany of other duties as required. The union contends that they are employees, the Employer that they are supervisors. At the hearing, the Employer announced as its origi- nal position that the status of the carriers was not in question and that its contention that Merkh, Jones, and Ballantyne were supervisors was based solely on their relationship to the part-time employees. Later it intro- duced evidence concerning the district managers' du- ties in relation to the carriers, although its final state- ment of position indicated that it considered them supervisors of the part-time employees without refer- ence to the carriers. However, in its brief the Employer contends that the district managers supervise the carri- ers as well as the part-time employees. We find that the record fails to establish that the district managers' duties with respect to the carriers constitute them supervisors within the meaning of the Act. The record not only fails to demonstrate that the hiring and replacement of carriers and the determina- tion of whether they will receive bonuses require the exercise of discretion or independent judgment, or that the district managers responsibly direct the carriers, but, more fundamentally, also fails to establish that carriers are employees and not independent contractors as the Employer holds out to the public.' One or more part-time employees work each week- day with the exception of Friday, performing a variety of tasks including sweeping the floor, taking papers from the press and stacking them, stuffing inserts, pick- ing up and returning rental trucks, delivering papers to carriers, and riding as helpers on trucks. The Employer contends that the supervisory hierarchy extends through Maul, the circulation manager, down to Jones, Merkh, and Ballantyne, in that order, who allegedly supervise the part-time employees when Maul is absent. When a new part-time employee starts to work, one of the district managers usually will give him a time- card, have him fill out a social security form, and show ' The names of the parties appear as amended at the hearing Cf A S Abe!! Co.. 185 NLRB No 24 195 NLRB No. 87 THE SUBURBAN NEWSPAPER GROUP 439 him the procedure. However, the work may also be explained to a new employee by the pressman or an experienced part-time employee. Merkh testified that he places a new employee with an experienced one and that if a man is incapable of performing the work he either does it himself or replaces him with someone who can do it. When a part-time employee reports to work he may either be told what job to do by one of the district managers or, if experienced, he may just start to work. If none of the district managers or Maul are present the employee may be told what to do by the pressman or may have a note on his timecard from Maul or one of the district managers with instructions. When the part-time employees leave they report the fact to Maul or one of the district managers but do not request permission to go. If enough part-time em- ployees do not report for work additional employees are called by Maul or, allegedly, by one of the district managers, from a list of employees who have worked previously. However, the only specific incident related of Merkh, Jones, or Ballantyne calling in a part-time employee on his own initiative resulted in Recchino, the general manager (possibly circulation manager at the time), reprimanding Merkh and threatening to re- quire him to pay the employee out of his own pocket. Although Maul testified that Merkh did not have the title of district manager at the time of this incident, he also testified that the only change made in Merkh's duties was to assign him responsibility for the circula- tion and distribution of specific newspapers. Both Maul, the circulation manager, and Recchino, the general manager, testified that the district managers are in charge when Maul is absent. Recchino, however, testified that he assumed that he had told the district managers they would be in charge when Maul was absent, although he did not specifically recall telling them. Maul testified that he thought he had told the district managers that they were in charge when he was absent and that he thought they knew that they were in charge because they are familiar with the work and because they are full-time employees. In its brief the Employer asserts, inter alia, that the district managers must be supervisors since otherwise the part-time employees would be working without supervision. This argument, however, fails somewhat flat, since Maul testified that during certain periods he and the district managers were absent from the plant and that he thought no one was in charge at those times. The discretion permitted the district managers is minimal, even assuming, despite some contrary tes- timony, that they are authorized to call in additional part-time employees on their own initiative when those scheduled to work do not show up, since such authority does not require the exercise of independent judgment. The record is barren of hard evidence that the district managers exercise more than the most routine clerical or other authority in connection with the part-time employees and demonstrates at most that in view of their greater experience and knowledge of the work they act as lead employees. We conclude that the dis- trict managers are not supervisors within the meaning of the Act and shall include them in the unit. On the basis of the foregoing, we find that the follow- ing employees of the Employer constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Employer, excluding all compositors; lithographic production employees; office clerical, editorial, and advertising sales employees; watchmen; guards; and supervisors as defined by the Act. 5. The parties have advanced different formulas for determining voter eligibility for part-time employees. The Employer maintains a list of some 82 part-time employees who have worked for it with widely varying degrees of regularity. Apparently once a name is placed on the list it is removed only in the event of consistent and repeated refusals to work when called. The Em- ployer originally proposed a list of 32 employees whom it considered regular part-time employees and later submitted a list of 25 employees. The Employer's final proposal was in the form of a list of all part-time em- ployees who had worked 5 days or more during the period of April 7 to July 15, 1971. According to the Employer the total number of possible working days for part-time employees during the period was 42, the average number of days worked was 11. The Employer contends that 5 days, roughly half of the average num- ber of days worked, would be a logical cutoff point. The Petitioner suggests that employees who have worked 25 percent of the available workdays should be eligible to vote, excluding students who work only during vaca- tion periods. There are 3 or 4 workdays per week for part-time employees depending upon whether or not Tuesday, when only one part-time employee works regularly, is included. The Employer would exclude Tuesdays from the computation of available workdays. The Petitioner, while not taking a strong position, apparently favors the inclusion of Tuesdays. To include Tuesdays, how- ever, would further distort a situation already distorted by the fact that most of the part-time work is performed on Wednesdays. Therefore, we shall make our compu- tation based on a total of 39 available workdays in a 13-week quarter. The record establishes that there are a number of part-time employees who regularly report to work without being called in. Assuming such an employee missed no days he would work a minimum of 13 days in a quarter. There seems to be no dispute between the parties that employees in this category should be con- 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sidered regular part-time employees. However, no legitimate interest would be served by disenfranchising an admittedly regular part-time employee through the sheer chance of missing a few days' work in a given quarter and, therefore, the cutoff figure for voter eligi- bility should be some number less than 13. Contrary to the Employer, however, we see no logic in setting an eligibility figure at one-half the average number of days worked by part-time employees, since such a figure bears little relationship to the interest of the employee in the representation of the overall unit which is com- posed of regular full-time and part-time employees. We conclude that part-time employees who work 9 days during the 13-week quarter preceding the election, ap- proximately one-quarter of the number of available work days, have a substantial and continuing interest in their terms and conditions of employment and we shall include them in the unit.' As the Petitioner argues, however, students who work only during vaca- tion periods do not have a substantial and continuing interest in their employment conditions and we shall exclude them from the unit. Because of the difficulty in framing a formula to isolate such students, students who meet the voter eligibility requirements shall be permitted to vote subject to challenge. [Direction of Election4 omitted from publication.] MEMBER KENNEDY, dissenting: My colleagues have concluded that District Mangers Jones, Merkh, and Ballantyne are employees, and not supervisors, although they have found that Jones, Merkh, and Ballantyne "hire carriers, replace them, explain their routes and how and when to serve papers, supply them with equipment, provide work permits, bill them, determine whether a carrier is to receive a bonus, etc." I cannot agree. I would find the district managers to be supervisors. Cf Fresno Auto Auction, Inc., 167 NLRB 878 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Underwear Inc., 156 NLRB 1236, N.L.R.B. v. Wyman-Gordon Co, 394 U S. 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 4 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordi- nary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed The record reflects that District Managers Jones, Merkh, and Ballantyne hire newsboys, replace them, establish route limits for them, check on deliveries, instruct the newsboys on where to serve and "try to get them out hustling," send bills out to them and collect payment, and determine which carriers are not entitled to a bonus. The district managers answer complaints concerning deliveries as they come in, and upon receipt of a complaint about a misdelivery either call the news- boy involved or stop out to talk to him. Louis J. Rec- chino, the Employer's general manager, who supervises the overall operation of 10 weekly newspaper groups, testified that District Managers Jones, Merkh, and Bal- lantyne "put newsboys on routes, explain their routes, explain to the carriers how to serve the papers, supply them with equipment they need for serving the papers, leave working permits for the parents to sign and for the boy to sign and mail back to the office." He further testified that the district managers establish route lim- its, check on misdeliveries, follow up complaints, and answer them, and determine who gets and who does not get a bonus. Section 2(11) of the Act defines the term "super- visor" as any individual having authority, in the inter- est of the employer, inter alia, to hire, transfer, sus- pend, lay off, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or effec- tively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. The record is devoid of any evidence that in the performance of their duties of hir- ing, replacing, billing, and in general directing the ac- tivities of the news carriers, and in determining which of them will not receive a bonus, District Managers Jones, Merkh, and Ballantyne do not exercise their own discretion or use independent judgment. In my view, each is clearly vested with authority to responsibly di- rect the carriers; such authority is substantially more than of a merely routine or clerical nature. Although the record shows that the district managers perform duties other than those mentioned above, such as tak- ing the papers off the press, stacking them, picking up rental trucks, delivering papers to carriers, etc., such additional work does not militate against a finding that they are supervisors within the meaning of the Act. For the foregoing reasons, I would find District Managers Jones, Merkh, and Ballantyne to be super- visors within the meaning of the Act and would exclude them from the unit sought by the Petitioner.