Binghamton Press Co., Inc.

808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Binghamton Press Company , Inc. and Binghamton Typographical Union No. 232, International Typo- graphical Union, AFL-CIO, Petitioner. Case 3- RC-6496 November 8, 1976 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Jerome P. Coyle. Following the hearing and pursuant to Sec- tion 102.67 of the National Labor Relations Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Director for Re- gion 3 issued an order transferring this case to the Board for decision. Thereafter the Petitioner and the Employer each filed briefs. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed.' Upon the entire record in this case the Board makes the following findings: 1. The parties stipulated, and we find, the follow- ing facts bearing on the Employer's operations. The Employer, Binghamton Press Company, Inc., a New York corporation, publishes and distributes two newspapers in Binghamton, New York. It has an an- nual gross revenue in excess of $200,000, subscribes to interstate wire services, advertises nationally sold goods, and receives goods valued in excess of $50,000 from outside the State. Accordingly, the parties stip- ulated, and we find, that the Employer is engaged in commerce within the meaning of the Act, and we find that it will effectuate the policies of the Act to assert jurisdiction herein.2 2. The labor organization involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. Petitioner seeks a unit comprised of all full-time i The Petitioner appealed the Hearing Officer's ruling granting the Employer's motion to revoke Petitioner's subpena for certain of the Em- ployer's employment records The Hearing Officer granted the Employer's motion on the ground that the records requested were either not relevant or not essential to the issues herein, and that the request for other records was too broad We find that the evidence adduced at the hearing is sufficient on which to make a unit determination and that no prejudice resulted to Peti- tioner from denial of the information requested At the hearing the Employer filed a motion to dismiss the petition on the ground that Petitioner seeks an inappropriate unit The Hearing Officer referred the motion to the Board As we find that the unit sought is appro- priate, we hereby deny the Employer's motion 2 Belleville Employing Printers, 122 NLRB 350, 351-352 (1958) and regular part-time newsroom employees of the Employer at its Vestal Parkway East, Binghamton, New York, facility, excluding confidential employ- eF;s, professional employees, guards, supervisors as defined in the Act, and all other employees. The unit sought would include reporters, columnists, editorial writers, copy editors, photographers, secretaries, li- brary staff, copy carriers, receptionists, and clerks. The Employer contends that the reporters, colum- nists, editorial writers, copy editors, and photogra- phers are professional employees within the meaning of Section 2(12) of the Act. It argues that, since the unit request includes professional employees, the Board should dismiss the petition or direct a self- determination election for the disputed categories. There is no prior history of collective bargaining for the newsroom employees. The two daily newspapers owned and operated by the Employer are the Evening Press and the Sun- Bulletin. The latter is a morning newspaper. The Em- ployer also publishes composite Saturday and Sun- day editions of the two newspapers. A single pub- lisher manages both newspapers, but there are separate editors and staff supervisors for each. The news staffs for each paper operate independently of each other but the photography department and li- brary functions are integrated. The news staffs of the newspapers are integrated to publish the weekend editions. The Petitioner seeks to represent a unit which would encompass, in part, reporters, editors, colum- nists, editorial writers, and photographers. The Em- ployer contends that these classifications should be excluded from the unit on the ground that they are professionals. The Evening Press employs approximately 20 re- porters, 7 copy editors, 1 full-time columnist, and 2 editorial writers. The Sun-Bulletin employs approxi- mately 10 reporters, 3 copy editors, and 1 editorial writer. Six photographers serve both newspapers. The Board has long since concluded that the opti- mum unit in the publishing industry is one which includes all nonmechanical employees.3 The Board has also recognized that where, as here, the parties agree on a unit comprised of newsroom employees the Board will honor that agreement and direct an election in such a unit.4 In the instant case the parties agree on the scope of the unit within the newsroom, as described in the petition. The issue here is whether certain of the newsroom employees-reporters, col- umnists, editorial writers, copy editors, and photog- raphers-are professional employees within the 3 The Van Nuys Publishing Company, Incorporated, d/b/a The Valley News and Green Sheet, 223 NLRB 155 (1976), and cases cited therein 4The Express-News Corporation, 223 NLRB 627 (1976) 226 NLRB No. 109 BINGHAMTON PRESS COMPANY, INC. meaning of Section 2(12) of the Act,' and therefore must be excluded from the unit and accorded a self- determination election due them under the statute. The Board recently examined the work of such employees in The Express-News Corporation.6 In that case we found that the work of similar employees did not satisfy the requirement of Section 2(12)(a)(iv) of the Act of "requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual in- struction and study in an institution of higher learn- ing . . . as distinguished from a general academic education ...."' Here, as in Express-News, reporters gather infor- mation and write news stories. The work requires ac- curate writing skills, the exercise of judgment in story selection, and discretion in obtaining information. The starting salary is between $140-$150 per week. Reporters receive overtime pay. The Employer pro- vides a general annual wage increase and grants mer- it increases at its discretion. Historically, these in- creases range between $5-$15 per week. Columnists are usually reporters who prepare ana- lytical columns on various subjects including sports, business, style, the arts, education, and politics. The Evening Press has one full-time columnist who writes columns on a regular basis; the Sun-Bulletin has none, other than its editor. Two columns, "50 Years Ago" and "Servicemen in the News," are written by an Evening Press secretarial employee. The full-time columnist at the Evening News is paid a weekly sal- ary for a 40-hour week. There is no established salary range for columnists as such. Editorial writers, working under the supervision of the editor, write opinions which express the views of the newspaper. At the Evening Press they also partic- ipate in the selection of syndicated columns and let- ters to the editor for publication. At the Sun-Bulletin Sec 2(12) of the Act defines the term "professional employee" to mean (a) any employee engaged in work (i) predominantly intellectual and varied in character as opposed to routine mental , manual, mechanical, or physical work, (u) involving the consistent exercise of discretion and judgment in its performance ; (in) of such a character that the output produced or the result accomplished cannot be standarized in relation to a given period of time, (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general aca- demic education or from an apprenticeship or from training in the performance of routine mental, manual , or physical processes, or (b) any employee, who (i ) has completed the courses of specialized intellectual instruction and study described in clause (iv) of paragraph (a), and (u) is performing related work under the supervision of a pro- fessional person to qualify himself to become a professional employee as defined in paragraph (a). s 6 Supra, fn 4 (the classification of photographer was not disputed in The Exjress-News case and was included in the unit) Chairman Murphy dissented 809 the editorial writer is responsible for the layout of the editorial adjacent page. There is no established hiring policy or salary range for editorial writers. They are selected from the existing staff of reporters or copy editors. Copy editors review and correct copy with respect to spelling, grammar, accuracy, content, and style. They condense stories to conform to space limita- tions and write headlines. Major changes made by copy editors in reporters' stories are approved by a copy chief or editor. Some select and condense copy received via the wire services. The beginning salary range, wage increases, and length of workweek are the same as for reporters. Photographers provide photographic material for news stories and advertising on assignment or on their own enterprise. The starting salary is $140-$160 for a 40-hour week. They receive overtime pay. Their work is periodically evaluated and merit increases range from $10-$20 per week. Of the 45 employees employed at the Evening Press in disputed categories (other than photogra- phers), 11 have no college degrees. Two employees have 2-year degrees. Thirty-two have 4-year degrees, and two have graduate degrees. Of those with 4-year college degrees, 18 have degrees in journalism. The graduate degrees and one 2-year degree were also in journalism. Of the 22 employees employed at the Sun-Bulletin in disputed categories other than photographers, 7 had no college degrees, 15 had 4-year college degrees and 2 had graduate degrees. Seven of the 15 college degrees and the 2 graduate degrees were in journal- ism. Of the six photographers who work for both news- papers, four had no college degrees. Two of the four had some college or photography school back- ground. Of the two photographers with college de- grees, one has a degree in journalism, and the other has a graduate degree in journalism with a major in photojournalism. The Employer does not maintain any formal train- ing program which its employees must complete prior to becoming journalists or photographers. The Board held in the Express-News case that the work of journalists did not satisfy the requirement of Section 2(12)(a)(iv). We found that "journalism is primarily a field of generalists with general academic backgrounds," and that "journalists are not required to have knowledge of an advanced type customarily acquired through specialized training in an institu- tion of higher learning." 8 We observed that many journalist employees perform their jobs without ad- vanced training in journalism, proving that knowl- 8 The Express-News Corporation, supra, fn 10 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD edge of an advanced type in the field is not needed to properly perform the job. Our holding in Express- News disposes of the issue in this case. Accordingly, we shall include the journalists in the unit. Further, we find that the photographers fail to meet the requirement of Section 2(12)(a)(iv), and therefore are not professionals, and we shall include them in the unit. The work of the photographers is more akin to that of interior designers (with college degrees in their field) whom the Board found to be nonprofessional because the occupation was "more of an art than a profession," not requiring an ad- vanced degree.' Member Walther's dissent relies on the Employer's hiring policy and the educational background of the employees of this individual employer to find that the journalists and photographers are professional employees. However, our decision in Express-News evaluated whether the work of journalists overall meets the statutory requirements of knowledge, i.e., that of an "advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning . . . as distinguished from a general academic education ...." We found that the work of journalists does not require such knowledge; that "many individuals with limited aca- demic training in journalism or limited journalistic experience perform well in their newsroom func- tions"; and that the work "can be competently ac- complished without requiring advanced degrees in journalism or equivalent experience." 10 We adhere to the views expressed in the Express-News case, supra Upon the entire record we find that the following employees of the Employer constitute a unit appro- priate for the purposes of collective bargaining with- in the meaning of Section 9(b) of the Act: All full-time and regular part-time newsroom employees, including reporters, columnists, edi- torial writers, copy editors and photographers, excluding confidential employees, professional 9 Skidmore, Owings & Merrill, 192 NLRB 920,921 (1971) Indeed, in Ex- press-News, supra, and earlier newspaper cases , photographers have been included in newspaper units without contest as to their nonprofessional status See Lowell Sun Publishing Company, 132 NLRB 1168 , 1171-72 (1961), The Salt Lake Tribune Publishing Company, 92 NLRB 1411, 1418- 19, 1420 ( 1951), A S Abell Company, Publisher, The Sun Papers The Sun, The Sunday Sun, The Evening Sun, 81 NLRB 82, 89 ( 1949) On occasion, in other industries , the Board has designated photographers as technicals (e g, Thiokol Chemical Corporation, Redstone Division, 123 NLRB 888. 892 (1959) ) 10 Express-News, supra As we hold that journalists' work does not require knowledge of an advanced type , the Employer's asserted policy of favoring job applicants with a journalism degree does not require a different result here because such a qualification is "unnecessary to accomplish the work in question " Id We note, furthermore , that the Employer's hiring record shows that it has not always conformed to its asserted policy Recent hires at both newspapers have not had a degree in journalism employees, guards, supervisors as defined in the Act," and all other employees. [Direction of Election omitted from publication.] 12 CHAIRMAN MURPHY, dissenting: Unlike my colleagues in the majority, I would find that the journalists herein are professional employees within the meaning of Section 2(12) of the Act for the reasons stated in my extensive dissent in The Ex- press-News Corporation, supra. With respect to the newspaper photographers, I also find that they are professional employees. In- deed, newspaper photographers are basically journal- ists who use photography as their primary means of communication. Many of these photographers also write photo captions and many work directly with the professional journalists to cover and communi- cate a story. Photojournalism has, in fact, evolved into a whole new profession in the communications field and is taught in many universities and colleges as a separate and distinct profession . In these cir- cumstances, I would find the newspaper photogra- phers here to be professional employees within the meaning of the Act for substantially the same reason that I find that journalists and political cartoonists are professional employees. MEMBER WALTHER , dissenting: The majority in The Express-News Corporation held that the journalists were not professional em- ployees because their work did not satisfy the re- quirements of Section 2(12)(a)(iv) in that it did not require "knowledge of an advanced type." It reiter- ated that its test for determining whether work re- quires such knowledge, set out in Western Electric Company, Incorporated, 126 NLRB 1346, 1348-49 (1960), "remains valid." 13 That test reads: If . . . a group of employees is predominantly composed of individuals possessing a degree in the field to which the profession is devoted, it may logically be presumed that the work re- quires "knowledge of an advanced type." Con- versely, if few in the group possess the appropri- ate degree, it logically follows that the education characteristics of the work are not those requir- ing the utilization of advanced knowledge. Examining the work of the journalists in light of the employees' educational background and the Employ- 11 The parties stipulated that the duties of the following individuals meet the criteria of a supervisor, as defined in Sec 2(l 1) of the Act We therefore exclude these individuals from the unit At the Sun-Bulletin Editor Michael Doll , News Editor William A Cau- field, City Editor John H Simpson , and Sports Editor Orin W Neilsen At the Evening Press Editor Lawrence S Hale , Managing Editor George R Venezelos , News Editor Walter B Aldrich, City Editor Joseph T Pierson, Special Feature Editor Howard M Krieger, and Sports Editor John W Fox 12 [Excelsior footnote omitted from publication ] 13 The Express-News Corporation, 223 NLRB 627 BINGHAMTON PRESS COMPANY, INC 811 er's hiring practice which stresses education in the field, I would find that the Employer's complement of journalists, unlike that in Express-News, is pre- dominantly composed of individuals with advanced knowledge acquired by specialized study. In Express-News, the employer did not require knowledge of an advanced type customarily acquired by a prolonged course of specialized intellectual in- struction in an institution of higher learning. More- over, in Express-News, there were few employees with a degree in journalism and a substantial number with no college study. The Board mentioned specifi- cally the absence of these factors. It said that the employer had "no policy of employing only journal- ists with advanced educational training in journalism or communications," 14 and "only a handful of them in fact have advanced degrees in journalism." 11 The facts in this case are the contrary. Those re- sponsible for formulating and effectuating the Em- ployer's hiring policy testified that an applicant's having a journalism degree or comparable education and experience has been of prime importance at the Evening Press since the mid-1960's and at the Sun- Bulletin since late 1971. A very substantial number of employees do have journalism degrees.16 Most others have at least a college degree with either courses in journalism and related subjects or experi- ence working as a journalist. Those who did not have formal courses of study generally have been long- time employees at the Employer's newspapers or in the newspaper industry, hired before the recent hir- ing policy became more selective." The majority of the journalists in the subject case thus qualify as pro- fessional employees within the meaning of the statute which "requires a prolonged course-or equivalent experience-of specialized instruction." 18 Whether newspaper photographers are also profes- sional employees is a question of first impression. The Board, however, in finding that the hotel publi- cist, who arranged for publication of items about guests in their hometown newspapers and who took "informal snapshots" of guests in this connection, was not a statutory "professional" employee, specifi- cally mentioned that "there is nothing in the record to indicate that she is a professional photogra- pher." 19 Unlike the earlier case, here there is every indication that the photographers are "professional" photographers in the usual and in the statutory sense. Photography is their entire occupation. Five of the six have had extensive education and experience in the field, and the sixth has been a professional pho- tographer, I would hold that by virtue of education and experience these are professional employees within the meaning of Section 2(12) of the statute. 17 At the Evening Press, of the I I without college degrees , 6 had been employed longer than 20 years The remaining 5 had extensive previous newspaper experience Similarly, at the Sun-Bulletin , of the 7 without col- Express-News, supra lege degrees, 4 were hired before late 1971, when the Employer initiated a 13 Ibtd more selective hiring policy The remainder had had substantial newspaper 16 At the Evening Press, 21 of the 32 with college degrees majored in expserience journalism at the Sun-Bulletin , 9 of the 15 with college degrees majored in The Express -News Corporation, supra journalism Similarly, two photographers had a degree in journalism 19 Arlington Hotel Company, Inc, 126 NLRB 400, 405 (1960)