The News-Journal Co.

568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The News-Journal Company and Newspaper Guild of Greater Philadelphia, Local 10 of the Newspaper Guild (AFL-CIO, CLC), Petitioner. Case 4-RC- 11576 December 23, 1976 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Martin J. Sobol of the National Labor Relations Board.' Following the hearing, this case was transferred to the National Labor Relations Board in Washington, D.C., for decision, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended. Thereafter, the Employer and the Petitioner filed briefs with the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 case, including the briefs filed by the Employer and the Petitioner, the Board finds: 1. The Employer is a Delaware corporation en- gaged in the publication and distribution of certain publications from its Wilmington, Delaware, loca- tion. During the past calendar year, the Employer, in the course and conduct of its business operations, held membership in or subscribed to various inter- state news services, including the Associated Press, United Press International, and the Times; published 1 Hearings were held on May 21 and June 3, 4, 17, and 18, 1975, after which briefs were filed by the parties with the Regional Director. On September 12, 1975, the Employer moved to reopen the record for the purpose of hearing testimony on the issue of whether or not certain employees were professional employees within the meaning of the Act. The Employer's motion was granted over the Petitioner's opposition and additional hearings were held on December 4 and 29, 1975 . The record was again closed and the case was transferred to the Board for decision. The parties filed supplemental briefs Thereafter, in May 1976, the Employer once again filed a motion to reopen the record. The Employer seeks to present additional evidence with regard to the reorganization of the news department that has occurred since the close of the hearings described above The Petitioner opposes the Employer's motion. We have carefully examined the Employer's motion and find that it lacks sufficient support to warrant reopening the record. Accordingly, we hereby deny the Employer's motion. 2 The parties stipulated that the following individuals are supervisory and hence excluded from the unit found appropriate: Richard P. Sanger (editor); James E. O'Brien (editorial director); Leslie E. Cansler, Jr. (managing 227 NLRB No. 83 various syndicated features, including Art Buchwald and James Reston; advertised various nationally sold products, including Winston cigarettes and Chevrolet automobiles; and received gross revenues from its publishing operations in excess of $500,000. The parties stipulated, and we find, that the Employer `is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization and claims to represent certain employees of the Employ- er. 3. A question affecting commerce exists concern- ing 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 to represent a unit of all full-time and regular part-time employees in the Employer's editorial and news departments at its facility located in Wilmington, Delaware, and em- ployees working in Newark, Sussex, and Dover, Delaware, and Washington, D.C. The parties are agreed generally that the editorial and news depart- ments constitute an appropriate unit.2 The Employer contends, however, that the assistant metropolitan editors and the bureau chiefs should be excluded from the unit because they are supervisors within the meaning of the Act. The Employer also contends that two photographers and a columnist should be exclud- ed from the unit because they are independent contractors; that the editor of "The Compass," a weekly supplement, should be excluded from the unit because he is a supervisor and managerial employee; and that two secretaries should be excluded from the unit because they are confidential employees.3 Final- ly, the Employer maintains that its reporters, city editors, photographers, and editorial writers are professional employees within the meaning of the Act and should be separate from the other employees.4 The Petitioner disagrees with these contentions and editor); Allen C. Miles (assistant managing editor); Frank K. Green (section 2 editor); Harry F. Themal (managing editor); Thomas M. Rettew, III (assistant managing editor), William C. Tudor (assistant managing editor); Norbert L. Robillard (librarian); John H. Taylor, Jr. (metro editor); Shawn D. Mullen (deputy metro editor), Hal Bodley (sports editor); Karl H. Feldner (assistant sports editor); John Flanagan (photo coordinator); and Chuck McGowan (chief of photography). The parties also agreed to include the following employees : Sy Scott (copy desk chief); Ken Jacobs (wire room supervisor), William Hall (copy desk chief); and Dorothy Brown and Vicki Houk (assistant librarians). 3 The Employer and the Petitioner disagree as to the inclusion of Shirley Rhoades. There is insufficient evidence in the record to determine her status or unit placement. Accordingly, Rhoades may vote subject to the challenge of either party 4 We note at the outset that the contention that journalists are "profes- sional" employees within the meaning of the Act has been fully litigated and rejected by the Board in The Express-News Corporation, 223 NLRB 627 (1976). We find nothing in the Employer's brief or in the record in the instant case that would lead us to a different conclusion. THE NEWS-JOURNAL COMPANY 569 maintains that all the individuals discussed above should properly be included in the unit. Assistant Metro Editors The metropolitan desk covers and writes news and feature stories that emanate from the headquarters office in Wilmington and the four bureau offices. The metro staff is composed of approximately 45 report- ers who perform local news gathering for both the "Morning News" and the "Evening Journal." Al- though some reporters because of -their work hours tend to contribute more to one newspaper than to the other, the metro staff services the local news coverage of both newspapers. John H. Taylor, Jr., a stipulated supervisor, is the metro editor. Shawn D. Mullen, a stipulated supervisor, is the deputy metro editor. There are four assistant metro editors: Al Kramer, Ken Lockerby, Jack Murray, and Margaret Crabtree. Assistant Metro Editor Al Kramer reports for work on the metro desk at approximately 5 a.m., Tuesday through Saturday. He is responsible for the fairness, completeness, and accuracy of the metropolitan news in the three daily editions of the "Evening Journal." Upon his arrival at the metro desk, Kramer receives an overnight note listing the reporters on duty, describing current stories, and providing instructions from the metro editor. He reviews and edits copy and assigns stories to rewrite men. He discusses stories with reporters, reviews and edits rewritten copy, and moves the copy along to the news editor. He has authority to return copy to a reporter with direction to revise it. He is also responsible-for the preparation of the news budget for the "Evening Journal" and attends the regular morning news budget meeting at which he makes recommendations to the managing editor, the news editor, and the deputy metro editor, among others, with 'regard to stories for the various editions of the "Evening Journal." Assistant Metro Editor Ken Lockerby exercises the same authority and performs the same functions as Kramer. The only significant difference is that Lockerby is involved with the publication of the "Morning News" rather than the "Evening Journal." Kramer is the senior official in the metro depart- ment from the time he arrives at 5 a.m. until 7:30 a.m. when Metro Editor Taylor arrives. After the metro editor and deputy metro editor depart for the day, Assistant Metro Editors Lockerby and Murray are in charge of the metro department. During such periods, the respective assistant metro editor has full authority to call employees who are not scheduled to work, to change schedules, and to authorize overtime and approve expense vouchers. - Jack Murray is the assistant metro editor responsi- ble for coordinating and overseeing the bureaus located in Newark, Sussex, and Dover, Delaware, and in Washington, D.C. Murray develops story ideas and makes assignments to bureau chiefs, as well as directly to reporters in the'bureaus. He prepares the news budget on stories emanating from the bureaus and is responsible for the fairness, accuracy, and completeness of-copy written in the bureaus. He also deals with personnel matters arising in the bureaus. A fourth assistant metro editor, Margaret Crabtree, is responsible for the so-called soft news. She oversees certain reporters who frequently write about food, travel, society, fashions, and weddings and engage- ments. - She oversees book and film reviews. She assigns long-term features and background stories to reporters, prepares a weekly budget that describes the stories that will be available, and discusses the quality of copy with reporters. She can return stories to reporters for revision. Crabtree approves expense vouchers and authorizes overtime. Although the ultimate decision to hire and fire employees for the metro department rests with the editor, the managing editors, and the metro editor, the assistant metro editors make recommendations with regard to hiring and firing employees on the metro staff. They also review and evaluate work performance, authorize overtime, and approve ex- pense vouchers for the metro staff. On the basis of the entire record that shows the frequent exercise of various supervisory powers by the assistant metro editors, we conclude that they are firstline supervisory personnel who-must be excluded from the unit. Bureau Chiefs The Employer maintains news bureaus in Newark, Sussex, and Dover, Delaware, and in Washington, D.C. As- described above, Assistant Metro Editor Murray is responsible for directing and overseeing the bureaus. Although there are minor differences among the bureaus, most bureaus operate with a bureau chief and one or two reporters. It is clear from the record that the bureau chiefs are basically experienced reporters who spend as much as 98 to 99 percent of their time covering stories. The Washington, D.C., bureau chief doubles as that bureau's only reporter. Many bureau reporters (and also bureau chiefs) have general areas of coverage. Assignments often routinely fall within these established areas of cover- age. Although bureau chiefs have some responsibili- ties for assigning stories to reporters, it appears that such assignments often turn on the availability of a reporter rather than on the exercise of discretion in the assignment of a story to a particular reporter. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Other assignments come directly to the reporters from Assistant Metro Editor Murray rather than from the bureau chiefs. The record also indicates that much of the copy produced in the bureaus goes directly to the Wilming- ton office without any editing by the bureau chiefs. There is no evidence that the bureau chiefs return stories to reporters for rewrites. Furthermore, the record shows that Assistant Metro Editor Murray frequently talks directly with the bureau reporters about stories, schedules, and news budget matters. Although the bureau chiefs sign overtime slips, they do so generally after the fact. Finally, it does not appear from the record that bureau chiefs have authority to, or effectively do, recommend the hire, fire, transfer, or discipline of reporters.5 Accordingly, we conclude that the bureau chiefs as a group lack the indicia of supervisory authority. We shall, therefore, include them in the unit. Public Editor The Employer maintained at the hearing that its public editor, Cy Lieberman, should be excluded from the unit because he is a supervisor and manage- rial employee. In its brief, the Employer represents that Lieberman left his position after the close of the hearing, that he has not been replaced, and that his duties have been absorbed by the editorial staff. Under these circumstances, we will not pass on the status of the public editor at this time. If the Employer fills the position of public editor, the individual may vote under challenge. Editor of "The Compass" The Employer contends that Alan Mueller, the editor of "The Compass," a weekly supplement, is a supervisor and managerial employee and hence should be excluded from the unit. There is no evidence establishing that Mueller possesses or exer- cises any indicia of supervisory authority over report- ers in the bargaining unit. Furthermore, the limited testimony that Mueller is responsible for the "totality of this weekly publication" provides an insufficient basis for determining whether or not Mueller is a managerial employee. Hence, we shall permit Muel- ler to vote under challenge. Photographers The Employer's photography department consists of approximately nine photographers. The parties have stipulated that two, photographers, McGown and Flanagan, are supervisors within the meaning of the Act. The Employer asserts that two, of the remaining seven photographers, Kevin Fleming and Glenn Crawford, are not employees within the meaning of the Act and hence cannot be included in the unit. The Petitioner disagrees. Under the terms of their respective agreements with the Employer, Fleming and Crawford are guaranteed a minimum number of assignments each week and they are paid a fixed sum per assignment. They may also submit self-initiated work which, if accepted, is paid in accordance with a fee schedule. They may refuse an assignment that carries an unreasonable risk of injury or that cannot be completed in the time specified. All expenses in carrying out local assign- ments are the responsibility of Fleming and Craw- ford, but they are reimbursed for transportation and living expenses for assignments performed outside a designated geographic area. While Fleming and Crawford provide their own equipment and supplies, they use the Employer's darkroom facilities, without cost or expense, to develop their film. They have agreed not to contract to provide photographic services to any person or firm in competition with the Employer. Their respective agreements with the Employer are short term and may be terminated without cause. In determining the status. of persons alleged to be independent contractors, the Board applies a "right of control" test,6 which turns on whether the person for whom the services are performed retains the right to control the manner and means by which the results are to be accomplished, or whether he controls only the results. In the latter situation,, the status is that of independent contractor. The resolution of this ques- tion depends on the facts in each case and no one factor is determinative. Here, as seems typical in cases of this kind, there are present factors supporting the position by both parties with respect to Fleming and Crawford's status. We are satisfied that Fleming and Crawford are employees of the Employer. Thus, even though the evidence described above discloses several factors usually present in independent contractor relation- ships, these factors are, in our view, outweighed by the evidence demonstrating employee status. The result to be accomplished is the preparation of the Employer's newspapers. In accomplishing this result, Fleming and Crawford bear slight resemblance to the independent businessmen whose earnings are con- trolled by self-determined policies, personal invest- ment and expenditures, securing business, and mar- ket conditions. Here, Fleming and Crawford are guaranteed a minimum number of assignments each week for which they are paid 'a fixed sum, thereby s The bureau cluefs' opinions on these matters might be solicited, but it 6 The Beacon Journal Publishing Company, 188 NLRB 218 (1971). does not appear from the record evidence that they effectively recommend with respect to such matters. TIDE NEWS-JOURNAL-COMPANY 571 greatly reducing. their risk -of , loss of earnings. Although- they have discretion to determine the manner in which assignments are to be performed, this factor carries-little weight here because it appears that such discretion is in the. nature of a photogra- pher.'s job. The facts that- the Employer exercises control over Fleming and Crawford's assignments, that _ _ Fleming and Crawford use the Employer's darkroom at no expense to develop their film; and that the contract is short term and can be terminated virtually at will are clear indications of an employ- ment relationship. On these facts, and the entire record, we find that the Employer has to a large extent reserved the right to control not only the result but also the manner by which Fleming and Crawford perform their work. Accordingly, we conclude that Fleming and Craw- ford are not independent contractors, but employees of the Employer.? Reporter-Columnist The Employer contends that William P. Frank is an independent contractor and hence must be excluded from the unit. The Petitioner maintains that Frank is an employee within the meaning of the Act and hence should be included in the unit. The record reveals that Frank retired from the Employer's employ on October 30, 1970. Neverthe- less, Frank has continued to work for the Employer pursuant to a contract between the Employer and William P. Frank, Inc. Under the terms of the contract, Frank agrees to furnish news, editorial, and other literary materials requested by the Employer on an exclusive basis, and the Employer agrees to pay Frank the difference between a figure set forth in the contract and the sum of his retirement benefits from the Employer's pension fund and from social securi- ty. The Employer also agrees to reimburse Frank for reasonable expenses. The contract may be terminated wthout cause on 30 days' notice. The record also reveals that at the time of the hearing Frank was working regularly for the Employ- er on a daily basis. He writes a column, prepares other articles for the papers, and covers the prison 7 Contrary to our dissenting colleague, we see controlling factual differences which distinguish La Prensa, Inc., 131 NLRB 527 (1961), from the instant case. For example, in La Prensa, the Board found "[t]he most important fact supporting [an independent contractor] relationship was [Carrion's] method of compensation." (131 NLRB at 531). Thus, Camon's "only payment was $3 for each picture accepted for publication If a picture was not accepted, Carrion stood the loss " In the instant case , Fleming and Crawford are guaranteed a minimum number of assignments each week, for which they are paid a fixed sum per assignment , regardless of whether the Employer uses the pictures. In view of the different methods of compensa- tion, as well as other factual differences in the two cases, we do not consider La Prensa to be controlling as to the status of Fleming and Crawford. 8 Neither party contends, and we do not find, that Frank should be excluded from the unit because he is a retiree. In this regard, we note that beat. Like the Employer's other reporters, ; Frank accepts assignments from, and clears self-initiated assignments with, the news department. - -,From the foregoing, and the entire record, it is plain that, in addition to controlling the result of Frank's work, the Employer exercises control over the man- ner and means. by which Frank performs his work. Accordingly, we find that Frank -is not an indepen- dent contractor, -but an employee of the Employers Confidential Employees The Employer maintains that Shirley Gregg and Irene Snell must be excluded from the unit as confidential employees. The Petitioner took no posi- tion on Gregg or Snell in its brief. The Board defines confidential employees as those employees who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations .9 The record shows that Gregg and Snell function in a confidential capacity to such persons: Gregg serves as secretary to the metro editor and the managing editors; Snell serves as secretary to the editor and executive editor. Both Gregg and Snell are called upon to type memoranda concerning labor policy, salaries, and disciplinary matters. According- ly, we shall exclude Gregg and Snell from the unit as confidential employees. We find the following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees in the News-Journal's editorial and news depart- ments at its facility in Wilmington, Delaware, and at its Dover, Newark, Sussex, Delaware, and Washington, D.C., bureaus; excluding managerial employees, supervisors, and guards as defined by the National Labor Relations Act. [Direction of Election omitted from publication.]10 MEMBER PENELLO, dissenting in part: I disagree with the portion of the majority that contract photographers Glenn Crawford and Kevin Frank has continued to work regularly for the Employer since his retirement. See Tusculum College, 199 NLRB 28, 32 (1972) (professors ementi). Nor is there sufficient basis in the record evidence to find that Frank lacks a community of interest with the unit employees. Unlike our dissenting colleague, we do not consider the fact that Frank "works for his own corporation and contracts his services to the newspaper" to be significant here. In this connection , it is well settled that the Board does not regard as determinative the fact that the written agreement defines the relationship as one of independent contractor . Finally, we see no reason to have Frank vote subject to challenge inasmuch as the record provides a sufficient basis to find that Frank is an employee of the Employer within the meaning ofthe Act. 9 The B. F. Goodrich Company, 115 NLRB 722,724 (1956). 10 Excelsior footnote omitted from publication. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fleming are employees within the meaning of the Act. In my view, by failing to find these individuals to be independent - contractors, my colleagues have incorrectly read the record -facts and have ignored Board precedent fully on point. The photographers in question use their own equipment and supplies except for pictures accepted; they can sell copies of pictures - to others except competitors; and the Employer does not control the manner or means by which they perform their work. In La Prensa, Inc., 131 NLRB 527 (1961), the Board" found that a newspaper photographer was an inde- pendent contractor based on- facts identical to. those set out above. The majority also fords that William P. Frank is an employee despite the fact that he works for his own corporation and contracts his services to the newspa- per. Although the record is not sufficiently developed to decide whether he is.an employee or independent contractor, the facts do bring the issue into conten- tion. I would therefore permit Frank to vote subject to challenge. y 1 Member Fanning is the only current Board Member who participated In the decision.